SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
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CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NO.: 0-50469
Date of Report: December 31, 2015
GREENSHIFT CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
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59-3764931
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(State of other jurisdiction of incorporation or organization
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(IRS Employer Identification No.)
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5950 Shiloh Road East Suite N, Alpharetta, GA
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30005
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(Address of principal executive offices)
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(Zip Code)
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(770) 886-2734
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(Registrant's telephone number including area code)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
□ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
□ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
□ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
□ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 |
Entry into Material Definitive Agreement |
Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant |
Item 3.02 |
Unregistered Sale of Equity Securities |
Item 5.01 |
Changes in Control of Registrant |
Item 5.03 |
Amendments to Articles of Incorporation |
Modification of Debt
On December 31, 2015 YA Global Investments, LP ("YAGI") and GreenShift entered into a Settlement Agreement pursuant to which YAGI accepted, in satisfaction of $14,196,897 of principal an interest accrued on debentures issued by GreenShift, a cash payment of $2,000,000 and the execution of a Royalty Agreement by GreenShift and its affiliates.
The Royalty Agreement provides that, for an indefinite term, GreenShift and its subsidiaries will pay to YAGI a royalty equal to 15% of all Intellectual Property Income earned by any of them. "Intellectual Property Income" is defined in the Royalty Agreement to encompass all payments received under, with respect to, or in connection with any intellectual property, including payments made by licensees, and including any amounts paid in settlement or as an award of damages arising from third party infringement of the intellectual property rights of GreenShift or its subsidiaries, provided that Intellectual Property Income by reason of settlements or awards will be reduced by the amount of any legal fees and expenses incurred in obtaining the settlement or award.
On the same date, GreenShift deposited $400,000 in cash into escrow in anticipation of settling an additional $2,939,300 in principal and interest due from GreenShift to various assignees of YAGI ("YAGI Assignees"). The YAGI Assignees have until March 31, 2016 to accept the relevant settlement terms.
Transfer of Controlling Interest
On December 31, 2015, FLUX Carbon Corporation, an entity owned by Kevin Kreisler, GreenShift's CEO, transferred its ownership interest in Viridis Capital LLC to Bitzio, Inc., a Nevada corporation (OTC Pink: BTZO) ("Bitzio"), in exchange for an 80% equity interest in Bitzio. Viridis Capital was, at the time of the transfer, the owner of 800,115 shares of Series D Preferred Stock issued by GreenShift.
Issuance of Series G Preferred Stock
On December 31, 2015, GreenShift filed with the Delaware Secretary of State a Certificate of Designation of Series G Preferred Stock, designating 800,000 shares of preferred stock as Series G Preferred Stock. The Series G shares may be converted by the holder into Company common stock. The conversion ratio is such that the full 800,000 Series G shares convert into GreenShift common shares representing 80% of the fully diluted common shares outstanding after the conversion (which includes all common shares outstanding plus all common shares potentially issuable upon the conversion of all derivative securities not held by the holder). The holder of Series G shares may cast the number of votes at a shareholders meeting or by written consent that equals the number of common shares into which the Series G shares are convertible on the record date for the shareholder action. In the event the Board of Directors declares a dividend payable to Company common shareholders, the holders of Series G shares will receive the dividend that wou
ld be payable if the Series G shares were converted into GreenShift common shares prior to the dividend. In the event of a liquidation of GreenShift, the holders of 800,000 Series G shares will receive a preferential distribution equal to 80% of the net assets available for distribution to the shareholders.
On December 31, 2015, GreenShift issued 800,000 shares of Series G Preferred Stock to Bitzio in exchange for 987,144 shares of GreenShift Series D Preferred Stock and $2,500,000 in cash. In connection with the foregoing transactions, GreenShift filed a Certificate of Elimination of Series D Preferred Stock.
Guaranty of Bitzio Debt
The $2,500,000 paid by Bitzio to GreenShift was drawn from a loan of $2,900,000 made to Bitzio by TCA Global Credit Master Fund, LP ("TCA"). The loan was made on December 31, 2015, pursuant to a Senior Secured Revolving Credit Facility Agreement (the "Credit Agreement"), under which TCA may lend to Bitzio up to $5,000,000. GreenShift and each of its subsidiaries, as well as each of the other subsidiaries of Bitzio, has executed a Guaranty Agreement dated December 31, 2015, in favor of TCA. In the Guaranty Agreement, GreenShift and each of its subsidiaries guaranteed payment of all amounts due to TCA under the Credit Agreement. By separate agreements, GreenShift and each subsidiary pledged all of its assets to secure the guaranty to TCA.
Item 9.01 Financial Statements and Exhibits
Exhibits
3-a |
Certificate of Designation of Series G Preferred Stock of GreenShift Corporation. |
10-a |
Royalty Agreement dated December 31, 2015 among Viridis Capital LLC, GreenShift Corporation, the subsidiaries of GreenShift Corporation, and YA Global Investments, LP. |
10-b |
Form of Guaranty Agreement executed by GreenShift Corporation and each subsidiary of GreenShift Corporation with TCA Global Credit Master Fund, LP dated December 31, 2015. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: January 26, 2016
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GREENSHIFT CORPORATION
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By:
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/s/ Kevin Kreisler
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Kevin Kreisler
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Chief Executive Officer
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Exhibit 3.1
CERTIFICATE OF DESIGNATION
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OF
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SERIES G PREFERRED STOCK
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OF
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GREENSHIFT CORPORATION
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GreenShift Corporation (the "Corporation"), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware ("GCL") and acting under Section 151 of GCL, does hereby submit the following Certificate of Designation of its Series G Preferred Stock.
FIRST: The name of the Company is GreenShift Corporation.
SECOND: By unanimous consent of the Board of Directors of the Corporation dated December 30, 2015, the following resolutions were duly adopted:
WHEREAS the Certificate of Incorporation of the Corporation authorizes Preferred Stock consisting of 5,000,000 shares, par value $0.001 per share, issuable from time to time in one or more series; and
WHEREAS the Board of Directors of the Corporation is authorized, subject to limitations prescribed by law and by the provisions of Article FIFTH of the Corporation's Certificate of Incorporation, as amended, to establish and fix the number of shares to be included in any series of Preferred Stock and the designation, rights, preferences, powers, restrictions and limitations of the shares of such series;
WHEREAS it is the desire of the Board of Directors to establish and fix the number of shares to be included in a new series of Preferred Stock and the designation, rights, and preferences and limitations of the shares of such new series;
NOW, THEREFORE, BE IT RESOLVED that pursuant to Article FIFTH of the Corporation's Certificate of Incorporation, as amended, there is hereby established a new series of 800,000 shares of convertible Preferred Stock of the Company (the Series G Preferred Stock") to have the designation, rights, preferences, powers, restrictions and limitations set forth in a supplement of Article FIFTH as follows:
1.
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Stated Value. Each share of Series G Preferred shall have a stated value equal to $0.001.
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2.
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Voting. The holders of shares of Series G Preferred Stock shall have the following voting rights: Each share of Series G Preferred Stock shall entitle the holder thereof, on all matters submitted to a vote of the stockholders of the Corporation, to that number of votes as shall be equal to the aggregate number of shares of Common Stock into which such holder's shares of Series G Preferred Stock are convertible on the record date for the stockholder action.
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3.
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Dividends. In the event that the Corporation's Board of Directors declares a dividend payable to holders of any class of stock, the holder of each share of Series G Preferred Stock shall be entitled to receive a dividend equal in amount and kind to that payable to the holder of the number of shares of the Corporation's Common Stock into which that holder's Series G Preferred Stock could be converted on the record date for the dividend.
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4.
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Liquidation. Upon the liquidation, dissolution and winding up of the Corporation, the holders of the Series G Preferred Stock shall be entitled to receive in cash out of the net assets of the Corporation, whether from capital or from earnings available for distribution to its stockholders, before any amount shall be paid to the holders of common stock or to the holders of any other class or series of equity stock, an amount equal to eighty percent (80%) of said net assets multiplied by a fraction, the numerator of which shall be the number of outstanding shares of Series G Preferred Stock on the record date for the distribution and the denominator of which shall be the number of authorized shares of Series G Preferred Stock.
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5.1 Conversion Procedure. Subject to and in compliance with the provisions of this Section 5.5, any shares of Series G Preferred Stock may, at the option of the holder, be converted into fully paid and nonassessable shares of Common Stock. The Holder of a share of Series G Preferred Stock may exercise its conversion right by giving a written conversion notice (the "Conversion Notice") (x) by facsimile to the Corporation confirmed by a telephone call or (y) by overnight delivery service, with a copy by facsimile to the Corporation's transfer agent for its Common Stock, as designated by the Corporation from time to time (the "Transfer Agent") and to its counsel, as designated by the Corporation from time to time. If such conversion will result in the conversion of all of such Holder's Series G Preferred Stock, the Holder shall also surrender the certificate for the Series G Preferred Stock to the Corporation at its principal office (or such other office or agency as the Corporation may designate by notice in writing to the Holder) at any time during its usual business hours on the date set forth in the Conversion Notice.
5.2 Conversion Ratio. The number of shares of Common Stock to which a holder of Series G Preferred Stock shall be entitled upon a Conversion shall equal the product obtained by (a) multiplying the number of Fully-Diluted Common Shares by four (4), then (b) multiplying the result by a fraction, the numerator of which will be the number of shares of Series G Preferred Stock being converted and the denominator of which will be the number of authorized shares of Series G Preferred Stock. The term "Fully-Diluted Common Shares" means the sum of the outstanding Common Stock plus all shares of Common Stock that would be outstanding if all outstanding securities that could be converted into Common Stock without additional consideration were converted on the Conversion Date, but shall not include Common Stock issuable on conversion of the Series G Preferred Stock.
5.3 Issuance of Certificates; Time Conversion Effected.
5.3.1. Conversion shall be deemed to have been effected, and the "Conversion Date" shall be deemed to have occurred, on the date on which such Conversion Notice shall have been received by the Corporation and at the time specified stated in such Conversion Notice, which must be during the calendar day of such notice. The rights of the Holder of the Series G Preferred Stock shall cease, and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such conversion shall be deemed to have become the holder or holders of record of the shares represented thereby, on the Conversion Date. Promptly, but in no event more than three (3) Trading Days, after the Conversion Date and surrender of the Series G Preferred Stock certificate (if required), the Corporation shall issue and deliver, or the Corporation shall cause to be issued and delivered, to the Holder, registered in such name or names as the Holder may direct, a certificate or certificates for the number of whole shares of Common Stock into which the Series G Preferred Stock has been converted. In the alternative, if the Corporation's Transfer Agent is a participant in the electronic book transfer program, the Transfer Agent shall credit such aggregate number of shares of Common Stock to which the Holder shall be entitled to the Holder's or its designee's balance account with The Depository Trust Corporation. Issuance of shares of Common Stock issuable upon conversion that are requested to be registered in a name other than that of the registered Holder shall be subject to compliance with all applicable federal and state securities laws.
5.3.2. The Corporation understands that a delay in the issuance of the shares of Common Stock beyond three (3) Trading Days after the Conversion Date (unless delivery of the Preferred Stock certificate is required) could result in economic loss to the Holder of the Series G Preferred Stock. As compensation to the Holder for such loss, the Corporation agrees to pay the Holder's actual losses occasioned by any "buy-in" of Common Stock necessitated by such late delivery. Furthermore, in addition to any other remedies that may be available to the Holder, if the Corporation fails for any reason to effect delivery of such shares of Common Stock within five (5) Trading Days after the Conversion Date (unless delivery of the Preferred Stock certificate is required), the Holder will be entitled to revoke the relevant Conversion Notice by delivering a notice to such effect to the Corporation. Upon delivery of such notice of revocation, the Corporation and the Holder shall each be restored to their respective positions immediately prior to delivery of such Conversion Notice, except that the Holder shall retain the right to receive the actual cost of any "buy-in."
5.4 Fractional Shares. The Corporation shall not, nor shall it cause the Transfer Agent to, issue any fraction of a share of Common Stock upon any conversion. All shares of Common Stock (including fractions thereof) issuable upon conversion of shares of Series G Preferred Stock by the Holder shall be aggregated for purposes of determining whether the conversion would result in the issuance of a fraction of a share of Common Stock. If, after such aggregation, the issuance would result in the issuance of a fraction of a share of Common Stock, the Corporation shall round, or cause the Transfer Agent to round, such fraction of a share of Common Stock up to the nearest whole share.
5.5 Reorganization, Reclassification, Consolidation, Merger or Sale. Any recapitalization, reorganization, reclassification, consolidation, merger, sale of all or substantially all of the Corporation's assets or other transaction which is effected in such a way that holders of Common Stock are entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Stock is referred to herein as an "Organic Change." Prior to the consummation of any Organic Change, the Corporation will make appropriate provision (in form and substance reasonably satisfactory to the Holder) to insure that the Holder will thereafter have the right to acquire and receive in lieu of or in addition to (as the case may be) the shares of Common Stock otherwise acquirable and receivable upon the conversion of his Series G Preferred Stock, such shares of stock, securities or assets as would have been issued or payable in such Organic Change with respect to or in exchange for the number of shares of Common Stock that would have been acquirable and receivable had his Series G Preferred Stock been converted into shares of Common Stock immediately prior to such Organic Change (without taking into account any limitations or restrictions on the timing of conversions). In any such case, the Corporation will make appropriate provision (in form and substance reasonably satisfactory to the Holder) with respect to the Holder's rights and interests to insure that the provisions of this Section 5 will thereafter be applicable unless prior to the consummation thereof, the successor entity (if other than the Corporation) resulting from consolidation or merger or the entity purchasing such assets assumes, by written instrument (in form and substance reasonably satisfactory to the holders of a more than one hundred percent (100%) of Series G Preferred Stock then outstanding), the obligation to deliver to each holder of Series G Preferred Stock such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holder may be entitled to acquire.
5.6 Vote to Change the Terms of or Issue Series G Preferred Stock. The affirmative vote at a meeting duly called for such purpose, or the written consent without a meeting, of the holders of not less than one hundred percent (100%) of the then outstanding shares of Series G Preferred Stock shall be required for any change to the Corporation's Certificate of Incorporation that would amend, alter, change or repeal any of the preferences, limitations or relative rights of the Series G Preferred Stock.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be executed by its President on December 31, 2015.
/s/ Kevin Kreisler
Kevin Kreisler, President
Exhibit 10.1
Exhibit 10.2
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (as may be amended, restated or modified from time to time, this "Pledge Agreement"), dated as of November 30, 2015 but made effective as of December 31, 2015, is made by and between [PLEDGOR], a [corporation incorporated / limited liability company organized and existing] under the laws of the State of [●], as pledgor (the "Pledgor"), and TCA GLOBAL CREDIT MASTER FUND, LP, a limited partnership organized and existing under the laws of the Cayman Islands, as pledgee (the "Pledgee").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Senior Secured Revolving Credit Facility Agreement, dated as of November 30, 2015 and effective as of the date hereof (as may be amended, restated or modified from time to time, the "Credit Agreement"), by and among Bitzio Inc., a corporation incorporated under the laws of the State of Nevada, as borrower (the "Borrower"), additional Credit Parties, and the Pledgee, as lender, the Pledgee has agreed to advance an aggregate principal amount of up to Five Million and No/100 United States Dollars (US$5,000,000) (the "Loan") to the Borrower, which Loan is further evidenced by revolving convertible promissory notes issued by the Borrower in favor of the Pledgee (as may be amended, restated or modified from time to time, the "Notes");;
WHEREAS, as of the date hereof, the Pledgor is the registered and beneficial owner of [●] ([●])of the issued and outstanding [membership interests / shares of common stock] (equal to [●]% of the total issued and outstanding shares of common stock) (the "Pledged Interests / Shares") of [Subsidiary], a [corporation incorporated / limited liability company organized and existing] under the laws of the State of [●] (in such capacity, the "Pledged Company"), and the [Pledged Interests / Shares] are represented by a certificate bearing certificate number [●] (the "Certificate");
WHEREAS, it is a condition precedent to the Pledgee making the Loan available to the Borrower under the Credit Agreement that the Pledgor execute and deliver to the Pledgee, as security for the obligations of the Borrower to the Pledgee, a pledge of all of the Pledgor's right, title and interest in and to the Pledged [Shares / Interests];
NOW, THEREFORE, in consideration of the premises set forth above, the covenants and agreements hereinafter set forth, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Pledgor and the Pledgee agree as set forth below:
SECTION 1. Defined Terms. Except as otherwise defined herein, terms defined in the Credit Agreement shall have the same meaning when used herein.
SECTION 2. Grant of Security. As security for the Obligations (as defined in the Credit Agreement), the Pledgor hereby pledges, assigns, transfers and delivers to the Pledgee the [Pledged Interests / Shares] and hereby grants to the Pledgee a first priority lien on and a first priority security interest in the following (collectively, the "Pledged Collateral"):
(i) the [Pledged Interests / Shares] and all capital, revenue, profit, income, gain or other property or proceeds, return on contribution or otherwise with respect to the [Pledged Interests / Shares];
(ii) all securities, moneys or property representing dividends or interest on any of the [Pledged Interests / Shares], or representing a distribution in respect of the [Pledged Interests / Shares], or resulting from a split-up, revision, reclassification or other like change of the [Pledged Interests / Shares] or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the holders of, or otherwise in respect of, the [Pledged Interests / Shares] (exclusive of any equity holder loan);
(iii) all right, title and interest of Pledgor in, to and under any policy of insurance payable by reason of loss or damage to the [Pledged Interests / Shares] and any other Pledged Collateral;
(iv) all other payments due or to become due to the Pledgor in respect of the [Pledged Interests / Shares] whether under any organizational document or otherwise, whether as contractual obligations, damages or otherwise;
(v) all "accounts", "general intangibles", "instruments" and "investment property" (in each case as defined in the UCC) constituting or relating to the foregoing;
(vi) all Proceeds of any of the foregoing property of Pledgor (including, without limitation, any proceeds of insurance thereon, all "accounts", "general intangibles", "instruments" and "investment property", in each case as defined in the UCC, constituting or relating to the foregoing); and
(vii) all other property hereafter delivered in substitution for or in addition to any of the foregoing, all certificates and instruments representing or evidencing such other property and all cash, securities, interest, dividends, rights and other property at any time and from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all thereof.
SECTION 3. Pledge Documents. Concurrently with the execution of this Pledge Agreement and upon the circumstances described in Section 6 hereof, the Pledgor shall execute and deliver to the Pledgee an irrevocable proxy in favor of the Pledgee in respect of the [Pledged Interests / Shares] of the Pledged Company in the form set out in Exhibit A hereto (the "Irrevocable Proxy") and shall deliver to the Pledgee the Certificate together with a signed, undated instrument of transfer in the form set out in Exhibit B hereto (an "Instrument of Transfer") pertaining thereto duly executed in blank.
SECTION 4. Representations and Warranties. The Pledgor represents and warrants that:
(a) it is the legal and beneficial owner of, and has good and marketable title to, the Pledged Collateral, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the lien and security interest created and contemplated by this Pledge Agreement;
(b) it has full power, authority and legal right to execute, deliver and perform its obligations under this Pledge Agreement and to create the lien and security interest contemplated by this Pledge Agreement;
(c) the [Pledged Interests / Shares] of the Pledged Company (i) have been duly and validly created pursuant to the relevant organizational documents of the Pledged Company, (ii) constitute [●]% of the total issued and outstanding capital stock of the Pledged Company; and (iii) are evidenced by the Certificate;
(d) the [Pledged Interests / Shares] are "securities" governed by Article 8 of the UCC;
(e) as of the date hereof, no Person has entered into any options, warrants or other agreements to acquire additional capital stock in the Pledged Company and there are no voting trusts or other member agreements or arrangements relating to any Pledged Collateral;
(f) this Pledge Agreement constitutes a valid obligation of the Pledgor, legally binding upon it and enforceable in accordance with its terms;
(g) the pledge, hypothecation, assignment of the Pledged Collateral and the delivery of the [Pledged Interests / Shares] (together with the Instrument of Transfers) pursuant to and/or described in this Pledge Agreement create a valid and perfected first priority security interest in the Pledged Collateral;
(h) no consent of any other party (including equity interest holders of the Pledgor) is required in connection with the execution, delivery, performance, validity, enforceability or enforcement of this Pledge Agreement, and no consent, license, approval or authorization of, or registration or declaration with, any governmental authority, bureau or agency is required in connection with the execution, delivery, performance, validity, enforceability or enforcement of this Pledge Agreement;
(i) the execution, delivery and performance of this Pledge Agreement will not violate or contravene any provision of any existing law or regulation or decree of any court, governmental authority, bureau or agency having jurisdiction in the premises or of the organizational documents of the Pledgor or of any mortgage, indenture, security agreement, contract, undertaking or other agreement to which the Pledgor is a party or which purports to be binding upon it or any of its properties or assets and will not result in the creation or imposition of any lien, charge or encumbrance on, or security interest in, any of its properties or assets pursuant to the provisions of any such mortgage, indenture, security agreement, contract, undertaking or other agreement;
(j) its chief executive office is located at [●]; and
(k) the representations and warranties set forth in the Credit Agreement insofar as they relate to the Pledgor are true and complete and the Pledgor shall comply with each of the covenants set forth in the Credit Agreement which are applicable thereto.
SECTION 5. Covenants. The Pledgor hereby covenants that during the continuance of this Pledge Agreement:
(a) it shall warrant and defend the right and title of the Pledgee conferred by this Pledge Agreement in and to the Pledged Collateral at the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral
(c) it shall not amend or modify any organizational document of the Pledged Company;
(d) it shall not vote the [Pledged Interests / Shares] of the Pledged Company in favor of the consolidation, merger, dissolution, liquidation or any other corporate reorganization of the Pledged Company;
(e) it shall not take from the Pledged Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Pledged Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Pledged Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(f) subject to the terms and conditions contained in the Credit Agreement, there shall not be issued any additional [membership interests / shares of capital stock] in the Pledged Company nor any options, warrants or other agreements to do so issued or entered into, provided however that if such [membership interests / shares of capital stock] are issued, they shall immediately be pledged to the Pledgee hereunder;
(g) it shall not release, transfer or otherwise dispose of any [membership interests / shares of capital stock] held by the Pledged Company as treasury stock or otherwise;
(h) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(i) it shall give at least ninety (90) days' prior written notice to Pledgee of any (i) change of the location of Pledgor's chief executive office from that specified in Section 4(j) hereof, (ii) change of Pledgor's name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction; and; and
(j) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Pledge Agreement.
SECTION 6. Delivery of Additional Collateral. If the Pledgor shall become entitled to receive or shall receive any equity interests, option or rights, whether as an addition to, in substitution of, or in exchange for any of the [Pledged Interests / Shares], the Pledgor agrees to accept the same as the agent of the Pledgee and to hold the same in trust for the benefit of the Pledgee and to deliver the same forthwith to the Pledgee in the exact form received, with the endorsement of the Pledgor when necessary and/or appropriate undated Instruments of Transfer duly executed in blank, and Irrevocable Proxies for any [membership interests / shares of capital stock] so received, in substantially the forms attached hereto to be held by the Pledgee, subject to the terms hereof, as additional collateral security for the Obligations.
SECTION 7. General Authority. The Pledgor hereby consents that, without the necessity of any reservation of rights against the Pledgor, and without notice to or further assent by the Pledgor, any demand for payment of any of the Obligations made by the Pledgee may be rescinded by the Pledgee and any of the Obligations continued, and the Obligations, or the liability of the Pledgor and/or the Pledged Company upon or for any part thereof, or any other collateral security (including, without limitation, any collateral security held pursuant to any of the other Loan Documents) or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, modified, accelerated, compromised, waived, surrendered, or released by the Pledgee, and the Loan Documents, any guarantees and any other collateral security documents executed and delivered by the Pledgor and/or the Pledged Company or any other obligors in respect of the Obligations may be amended, modified, supplemented or terminated, in whole or in part, as the Pledgee may deem advisable, from time to time, and any other collateral security at any time held by the Pledgee for the payment of the Obligations (including, without limitation, any collateral security held pursuant to any other collateral security document executed and delivered pursuant to the Loan Documents) may be sold, exchanged, waived, surrendered or released, all without notice to or further assent by the Pledgor or the Pledged Company, which shall remain bound hereunder, notwithstanding any such renewal, extension, modification, acceleration, compromise, amendment, supplement, termination, sale, exchange, waiver, surrender or release. The Pledgor waives any and all notices of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Pledgee upon this Pledge Agreement, and the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Pledge Agreement, and all dealings between the Pledged Company and the Pledgee shall likewise be conclusively presumed to have been had or consummated in reliance upon this Pledge Agreement. The Pledgor waives diligence, presentment, protest, demand for payment and notice of default or non-payment to or upon the Pledgor or the Pledged Company with respect to the Obligations.
SECTION 8. Voting Rights. The Pledgee shall, as the Pledgee and as the holder of the Irrevocable Proxies, receive notice and have the right (but not the obligation) to vote the [Pledged Interests / Shares] at its own discretion at, any annual or special meeting, as the case may be, of the shareholders of the Pledged Company, provided, however, that the Pledgee shall not be entitled to receive notice, or to exercise such right to vote until the occurrence of and continuing of an Event of Default or any of the security created by or pursuant to this Pledge Agreement shall be deemed imperiled or jeopardized in a manner by the Pledgee in its sole discretion.
SECTION 9. UCC Filings. The Pledgor does hereby authorize the Pledgee to do all things the Pledgee may reasonably deem to be necessary or advisable in order to perfect or maintain the security interest granted by this Pledge Agreement including, but not limited to, filing any and all Uniform Commercial Code financing statements or renewals thereof.
SECTION 10. Remedies. At any time after the occurrence of an Event of Default or in the event any of the security created by or pursuant to this Pledge Agreement shall be imperiled or jeopardized in a manner deemed material by the Pledgee in its sole discretion, the Pledgee shall be entitled, without further notice to the Pledgor:
(a) subject to the limitations of Sections 9-610 and 9-615 of the UCC (to the extent applicable), to sell, assign, transfer and deliver at any time the whole, or from time to time any part, of the Pledged Collateral or any rights or interests therein, at public or private sale or in any other manner, at such price or prices and on such terms as the Pledgee may deem appropriate, and either for cash, on credit, for other property or for future delivery, at the option of the Pledgee, upon not less than 10 days' written notice (which 10 day notice is hereby acknowledged by the Pledgor to be reasonable) addressed to the Pledgor at its last address provided to the Pledgee pursuant to this Pledge Agreement, but without demand, advertisement or other notice of any kind (all of which are hereby expressly waived by the Pledgor). If any of the Pledged Collateral or any rights or interests thereon are to be disposed of at a public sale, the Pledgee may, without notice or publication, adjourn any such 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, occur at the time and place identified in such announcement. If any of the Pledged Collateral or any rights or interests therein shall be disposed of at a private sale, the Pledgee shall be relieved from all liability or claim for inadequacy of price. At any such public sale the Pledgee may purchase the whole or any part of the Pledged Collateral or any rights or interests therein so sold. Each purchaser, including the Pledgee should it acquire the Pledged Collateral, at any public or private sale, shall hold the property sold free from any claim or right of redemption, stay, appraisal or reclamation on the part of the Pledgor which are hereby expressly waived and released to the extent permitted by applicable law. If any of the Pledged Collateral or any rights or interests therein shall be sold on credit or for future delivery, the Pledged Collateral or rights or interests so sold may be retained by the Pledgee until the selling price thereof shall be paid by the purchaser, but the Pledgee shall not incur any liability in case of failure of the purchaser to take up and pay for the Pledged Collateral or rights or interests therein so sold. In case of any such failure, the Pledged Collateral or rights or interests therein may again be sold on not less than 10 days' written notice as aforesaid; and
(b) to exercise all voting and other equity interest rights at any meeting of any Pledged Company and exercise any and all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining to the [Pledged Interests / Shares] of the Pledged Company as if it was the absolute owner thereof, including, without limitation, the right to exchange at its discretion, such [Pledged Interests / Shares] upon the merger, consolidation, reorganization, recapitalization or other readjustment of the Pledged Company or, upon the exercise by the Pledged Company or the Pledgee of any right, privilege or option pertaining to such Pledged Share, and in connection therewith, to deposit and deliver such [Pledged Interests / Shares] with any committee, depository, transfer agent, registrar or other designated agency upon such terms and conditions as it may determine, all without liability except to account for property actually received by it.
SECTION 11. No Duty on Pledgee. The Pledgee shall have no duty to exercise any of the aforesaid rights, privileges or options and shall not be responsible for any failure to do so or delay in so doing.
SECTION 12. Application of Proceeds. All moneys collected or received by the Pledgee pursuant to this Pledge Agreement shall be applied as provided in the Credit Agreement.
SECTION 13. Miscellaneous.
13.1 Further Assurances. The Pledgor agrees that if this Pledge Agreement shall, in the reasonable opinion of the Pledgee, at any time be deemed by the Pledgee, for any reason, insufficient in whole or in part to carry out the true intent and spirit hereof, it shall execute or cause to be executed such other documents or deliver or cause to be delivered such further assurances as in the opinion of the Pledgee may be required in order to more effectively accomplish the purposes of this Pledge Agreement including, without limitation, an alternative pledge or such other alternative security as the Pledgee shall reasonably require.
13.2 Remedies Cumulative and Not Exclusive; No Waiver. Each and every right, power and remedy herein given to the Pledgee shall be cumulative and shall be in addition to every other right, power and remedy of the Pledgee now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy, whether herein given or otherwise existing, may be exercised from time to time, in whole or in part, and as often and in such order as may be deemed expedient by the Pledgee, and the exercise or the beginning of the exercise of any right, power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. No failure, delay or omission by the Pledgee in the exercise of any right or power or in the pursuance of any remedy accruing upon any breach or default by the Pledgor or any Credit Party shall impair any such right, power or remedy or be construed to be a waiver of any such right, power or remedy or to be an acquiescence therein; nor shall the acceptance by the Pledgee of any security or of any payment of or on account of any of the amounts due from the Pledgor or any Credit Party to the Pledgee and maturing after any breach or default or of any payment on account of any past breach or default be construed to be a waiver of any right with respect to any future breach or default or of any past breach or default not completely cured thereby. In addition to the rights and remedies granted to it in this Pledge Agreement and in any other instrument or agreement securing, evidencing or relating to any of the Obligations, the Pledgee shall have rights and remedies of a secured party under the UCC.
13.3 Successors and Assigns. This Pledge Agreement and all obligations of the Pledgor hereunder shall be binding upon the successors and assigns of the Pledgor and shall, together with the rights and remedies of the Pledgee hereunder, inure to the benefit of the Pledgee, its respective successors and assigns.
13.4 Waiver; Amendment. None of the terms and conditions of this Pledge Agreement may be changed, waived, modified or varied in any manner whatsoever unless in writing duly signed by the Pledgor and the Pledgee.
13.5 Invalidity. If any provision of this Pledge Agreement shall at any time, for any reason, be declared invalid, void or otherwise inoperative by a court of competent jurisdiction, such declaration or decision shall not affect the validity of any other provision or provisions of this Pledge Agreement, or the validity of this Pledge Agreement as a whole and, to the fullest extent permitted by law, the other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in favor of the Pledgee in order to carry out the intentions of the parties hereto as nearly as may be possible. The invalidity and unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.
13.6 Notices. All notices of request, demand and other communications hereunder shall be addressed, sent and deemed delivered in accordance with the Purchase Agreement, including delivery of any such notices or communications to the Pledged Company on behalf of the Pledgor, which Pledgor hereby agrees and acknowledges shall be valid and effective notice to the Pledgor hereunder.
13.7 Counterparts; Electronic Delivery. This Pledge Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute one and the same instrument. Delivery of an executed counterpart of this Pledge Agreement by facsimile or electronic transmission shall be deemed as effective as delivery of an originally executed counterpart. In the event that the Pledgor delivers an executed counterpart of this Pledge Agreement by facsimile or electronic transmission, the Pledgor shall also deliver an originally executed counterpart as soon as practicable, but the failure of the Pledgor to deliver an originally executed counterpart of this Pledge Agreement shall not affect the validity or effectiveness of this Pledge Agreement.
13.8 References. References herein to Sections, Exhibits and Schedules are to be construed as references to sections of, exhibits to, and schedules to, this Pledge Agreement, unless the context otherwise requires.
13.9 Headings. In this Pledge Agreement, Section headings are inserted for convenience of reference only and shall not be taken into account in the interpretation of this Pledge Agreement.
13.10 Termination. When all of the Obligations shall have been fully satisfied, the Pledgee agrees that it shall forthwith release the Pledgor from its Obligations hereunder and the Pledgee, at the request and expense of the Pledgor, shall promptly execute and deliver to the Pledgor a proper instrument or instruments acknowledging the satisfaction and termination of this Pledge Agreement, and the Irrevocable Proxies shall terminate forthwith and be delivered to the Pledgor forthwith together with the other items furnished to the Pledgee pursuant to this Pledge Agreement.
SECTION 14. Applicable Law, Jurisdiction and Waivers.
14.1 Governing Law. Except in the case of the Mandatory Forum Selection clause set forth in Section 14.2 hereof, this Pledge Agreement shall be governed by and construed in accordance with the laws of the Nevada, without regard to principles of conflicts of laws thereof.
14.2 MANDATORY FORUM SELECTION. ANY DISPUTE ARISING UNDER, RELATING TO, OR IN CONNECTION WITH THE AGREEMENT OR RELATED TO ANY MATTER WHICH IS THE SUBJECT OF OR INCIDENTAL TO THE AGREEMENT (WHETHER OR NOT SUCH CLAIM IS BASED UPON BREACH OF CONTRACT OR TORT) SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED IN BROWARD COUNTY, FLORIDA. THIS PROVISION IS INTENDED TO BE A "MANDATORY" FORUM SELECTION CLAUSE AND GOVERNED BY AND INTERPRETED CONSISTENT WITH FLORIDA LAW.
14.3 WAIVER OF IMMUNITY. TO THE EXTENT THAT THE PLEDGOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM SUIT, JURISDICTION OF ANY COURT OR ANY LEGAL PROCESS (WHETHER THROUGH ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION OF A JUDGMENT, OR FROM ANY OTHER LEGAL PROCESS OR REMEDY) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE PLEDGOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS PLEDGE AGREEMENT.
14.4 WAIVER OF JURY TRIAL. EACH OF THE PLEDGOR AND THE PLEDGEE HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO OR ANY BENEFICIARY HEREOF ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS PLEDGE AGREEMENT.
[-signature page follows-]
IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement to be duly executed the day and year first above written.
PLEDGOR:
[PLEDGOR]
By: ___________________________
Name:
Title:
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
The undersigned, a Notary Public in and for the said County, in the State aforesaid, DO HEREBY CERTIFY that ______________, the _______________________ of ___________________, a __________________ corporation, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he/she signed and delivered the said instrument as his/her own free and voluntary act and as the free and voluntary act of said corporation, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this _____ day of ________________, 20____.
______________________________________
Notary Public
My Commission Expires:
______________________________________
[ signature page to Pledge Agreement ]
PLEDGEE
TCA GLOBAL CREDIT MASTER FUND, LP
By: TCA Global Credit Fund GP, Ltd.
Its: General Partner
By: ___________________________
Name: Robert Press
Title: Director
[ signature page to Pledge Agreement ]
IRREVOCABLE PROXY
The undersigned, the registered and beneficial owner of the below described [membership interests / shares of capital stock] of [SUBSIDIARY], a [corporation incorporated / limited liability company organized and existing] under the laws of the State of [●] ("Pledged Company"), hereby makes, constitutes and appoints, TCA Global Credit Master Fund, LP, a limited partnership organized and existing under the laws of the Cayman Islands (the "Pledgee"), with full power to appoint a nominee or nominees to act hereunder from time to time, the true and lawful attorney and proxy of the undersigned to vote one hundred percent (100%) of the [membership interests / shares of capital stock] of the Pledged Company, at all annual and special meetings of the Pledged Company or take any action by written consent with the same force and effect as the undersigned might or could do, hereby ratifying and confirming all that the said attorney or its nominee or nominees shall do or cause to be done by virtue hereof.
The said [membership interests / shares of capital stock] have been pledged (the "Pledge") to the Pledgee pursuant and subject to a Pledge Agreement, dated as of November 30, 2015 and effective as of December 31, 2015, by and between the undersigned and the Pledgee.
This power and proxy is coupled with an interest and is irrevocable and shall remain irrevocable so long as the Pledge is outstanding and is in full force and effect.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be duly executed on December 31, 2015.
[PLEDGOR]
By: ___________________________
Name:
Title:
INSTRUMENT OF TRANSFER
FOR VALUE RECEIVED:
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PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OR ASSIGNEE
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hereby sells, assigns and transfers unto _____
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Of
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standing in my (our) name(s)
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on the books of said corporation represented by Certificate(s) No.(s).
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herewith, and do hereby irrevocably constitute and appoint
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attorney to transfer the
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said stock on the books of said corporation with full power of substitution in the premises, This Instrument is given for collateral purposes only pursuant to that certain Pledge Agreement between the undersigned and VOD Global Credit Master Fund, LP dated as of November 30, 2015 and made effective as of December ______, 2015.
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Dated
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In presence of
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Greenshift (PK) (USOTC:GERS)
과거 데이터 주식 차트
부터 11월(11) 2024 으로 12월(12) 2024
Greenshift (PK) (USOTC:GERS)
과거 데이터 주식 차트
부터 12월(12) 2023 으로 12월(12) 2024