GUARANTY AND PLEDGE AGREEMENT
GUARANTY AND PLEDGE AGREEMENT (this "Agreement"), dated as of August 12,
2004, among QT 5, Inc., a Delaware corporation (the "Company"), Timothy J. Owens
(the "Pledgor"), and the pledgees signatory hereto and their respective
endorsees, transferees and assigns (collectively, the "Pledgees").
W I T N E S S E T H:
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WHEREAS, pursuant to a Securities Purchase Agreement, dated the date
hereof, between Company and the Pledgees (the "Purchase Agreement"), Company has
agreed to issue to the Pledgees and the Pledgees have agreed to purchase from
Company certain of Company's 10% Callable Secured Convertible Notes, due two
years from the date of issue (the "Notes"), which are convertible into shares of
Company's Common Stock, par value $.001 per share (the "Common Stock"). In
connection therewith, Company shall issue the Pledgees certain Common Stock
purchase warrants (the "Warrants"); and
WHEREAS, as a material inducement to the Pledgees to enter into the
Purchase Agreement, the Pledgees have required and the Pledgor has agreed (i) to
unconditionally guarantee the timely and full satisfaction of all obligations of
the Company, whether matured or unmatured, now or hereafter existing or created
and becoming due and payable (the "Obligations") to the Pledgees, their
successors, endorsees, transferees or assigns under the Transaction Documents
(as defined in the Purchase Agreement) to the extent of the Collateral (as
defined in Section 5 hereof), and (ii) to grant to the Pledgees, their
successors, endorsees, transferees or assigns a security interest in all of the
shares of Common Stock currently owned by the Pledgor (collectively, the
"Shares"), as collateral security for Obligations. Terms used and not defined
herein shall have the meaning ascribed to them in the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, and the mutual
covenants contained herein, the parties hereby agree as follows:
1. Guaranty. To the extent of the Collateral, the Pledgor hereby
absolutely, unconditionally and irrevocably guarantees to the Pledgees, their
successors, endorsees, transferees and assigns the due and punctual performance
and payment of the Obligations owing to the Pledgees, their successors,
endorsees, transferees or assigns when due, all at the time and place and in the
amount and manner prescribed in, and otherwise in accordance with, the
Transaction Documents, regardless of any defense or set-off counterclaim which
the Company or any other person may have or assert, and regardless of whether or
not the Pledgees or anyone on behalf of the Pledgees shall have instituted any
suit, action or proceeding or exhausted its remedies or taken any steps to
enforce any rights against the Company or any other person to compel any such
performance or observance or to collect all or part of any such amount, either
pursuant to the provisions of the Transaction Documents or at law or in equity,
and regardless of any other condition or contingency. The Pledgor shall have no
obligation whatsoever to the Pledgees beyond the Collateral pledged for the
Obligations set forth herein.
2. Waiver of Demand. The Pledgor hereby unconditionally: (i) waives
any requirement that the Pledgees, in the event of a breach in any material
respect by the Company of any of its representations or warranties in the
Transaction Documents, first make demand upon, or seek to enforce remedies
against, the Company or any other person before demanding payment of enforcement
hereunder; (ii) covenants that this Agreement will not be discharged except by
complete performance of all the Obligations to the extent of the Collateral;
(iii) agrees that this Agreement shall remain in full force and effect without
regard to, and shall not be affected or impaired, without limitation, by, any
invalidity, irregularity or unenforceability in whole or in part of the
Transaction Documents or any limitation on the liability of the Company
thereunder, or any limitation on the method or terms of payment thereunder which
may now or hereafter be caused or imposed in any manner whatsoever; and (iv)
waives diligence, presentment and protest with respect to, and notice of default
in the performance or payment of any Obligation by the Company under or in
connection with the Transaction Documents.
3. Release. The obligations, covenants, agreements and duties of the
Pledgor hereunder shall not be released, affected or impaired by any assignment
or transfer, in whole or in part, of the Transaction Documents or any
Obligation, although made without notice to or the consent of the Pledgor, or
any waiver by the Pledgees, or by any other person, of the performance or
observance by the Company or the Pledgor of any of the agreements, covenants,
terms or conditions contained in the Transaction Documents, or any indulgence in
or the extension of the time or renewal thereof, or the modification or
amendment (whether material or otherwise), or the voluntary or involuntary
liquidation, sale or other disposition of all or any portion of the stock or
assets of the Company or the Pledgor, or any receivership, insolvency,
bankruptcy, reorganization, or other similar proceedings, affecting the Company
or the Pledgor or any assets of the Company or the Pledgor, or the release of
any proper from any security for any Obligation, or the impairment of any such
property or security, or the release or discharge of the Company or the Pledgor
from the performance or observance of any agreement, covenant, term or condition
contained in or arising out of the Transaction Documents by operation of law, or
the merger or consolidation of the Company, or any other cause, whether similar
or dissimilar to the foregoing.
4. Subrogation.
(a) Unless and until complete performance of all the Obligations
to the extent of the Collateral, the Pledgor shall not be entitled to exercise
any right of subrogation to any of the rights of the Pledgees against the
Company or any collateral security or guaranty held by the Pledgees for the
payment or performance of the Obligations, nor shall the Pledgor seek any
reimbursement from the Company in respect of payments made by the Pledgor
hereunder.
(b) In the extent that the Pledgor shall become obligated to
perform or pay any sums hereunder, or in the event that for any reason the
Company is now or shall hereafter become indebted to the Pledgor, the amount of
such sum shall at all times be subordinate as to lien, time of payment and in
all other respects, to the amounts owing to the Pledgees under the Transaction
Documents and the Pledgor shall not enforce or receive payment thereof until all
Obligations due to the Pledgees under the Transaction have been performed or
paid. Nothing herein contained is intended or shall be construed to give to the
Pledgor any right of subrogation in or under the Transaction Documents, or any
right to participate in any way therein, or in any right, title or interest in
the assets of the Pledgees.
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5. Security. As collateral security for the punctual payment and
performance, when due, by the Company of all the Obligations, the Pledgor hereby
pledges with, hypothecates, transfers and assigns to the Pledgees all of the
Shares and all proceeds, shares and other securities received, receivable or
otherwise distributed in respect of or in exchange for the Shares, including,
without limitation, any shares and other securities into which such Shares may
be convertible or exchangeable (collectively, the "Additional Collateral" and
together with the Shares, the "Collateral"). Simultaneously herewith, the
Pledgor shall deliver to the Pledgees the certificate(s) representing the
Shares, stamped with a bank medallion guarantee, along with a stock transfer
power duly executed in blank by the Pledgor, to be held by the Pledgees as
security. Any Collateral received by the Pledgor on or after the date hereof
shall be immediately delivered to the Pledgees together with any executed stock
powers or other transfer documents requested by the Pledgees, which request may
be made at any time prior to the date when the Obligations shall have been paid
and otherwise satisfied in full.
6. Voting Power, Dividends, Etc. and other Agreements.
(a) Unless and until an Event of Default (as set forth in
Section 7 hereof) has occurred, the Pledgor shall be entitled to:
(i) Exercise all voting and/or consensual powers pertaining
to the Collateral, or any part thereof, for all purposes;
(ii) Receive and retain dividends paid with respect to the
Collateral; and
(iii)Receive the benefits of any income tax deductions
available to the Pledgor as a shareholder of the Company.
(b) The Pledgor agrees that it will not sell, assign, transfer,
pledge, hypothecate, encumber or otherwise dispose of the Collateral.
(c) The Pledgor and the Company jointly and severally agree to
pay all costs including all reasonable attorneys' fees and disbursements
incurred by the Pledgees in enforcing this Agreement in accordance with its
terms.
7. Default and Remedies.
(a) For the purposes of this Agreement, "Event of Default" shall
mean:
(i) default in or under any of the Obligations after the
expiration, without cure, of any applicable cure period;
(ii) a breach in any material respect by the Company of any
of its representations or warranties in the Transaction Documents; or
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(iii)a breach in any material respect by the Pledgor of any
of its representations or warranties in this Agreement.
(b) the Pledgees shall have the following rights upon any Event
of Default:
(i) the rights and remedies provided by the Uniform
Commercial Code as adopted by the State of New York (the "UCC") (as
said law may at any time be amended);
(ii) the right to receive and retain all dividends, payments
and other distributions of any kind upon any or all of the Collateral;
(iii)the right to cause any or all of the Collateral to be
transferred to its own name or to the name of its designee and have
such transfer recorded in any place or places deemed appropriate by
the Pledgees; and
(iv) the right to sell, at a public or private sale, the
Collateral or any part thereof for cash, upon credit or for future
delivery, and at such price or prices in accordance with the UCC (as
such law may be amended from time to time). Upon any such sale the
Pledgees shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold. The Pledgees shall give the
Pledgor not less than ten (10) days' written notice of its intention
to make any such sale. Any such sale, shall be held at such time or
times during ordinary business hours and at such place or places as
the Pledgees may fix in the notice of such sale. The Pledgees may
adjourn or cancel any sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and
such sale may be made at any time or place to which the same may be so
adjourned. In case of any sale of all or any part of the Collateral
upon terms calling for payments in the future, any Collateral so sold
may be retained by the Pledgees until the selling price is paid by the
purchaser thereof, but the Pledgees shall incur no liability in the
case of the failure of such purchaser to take up and pay for the
Collateral so sold and, in the case of such failure, such Collateral
may again be sold upon like notice. The Pledgees, however, instead of
exercising the power of sale herein conferred upon them, may proceed
by a suit or suits at law or in equity to foreclose the security
interest and sell the Collateral, or any portion thereof, under a
judgment or decree of a court or courts of competent jurisdiction, the
Pledgor having been given due notice of all such action. The Pledgees
shall incur no liability as a result of a sale of the Collateral or
any part thereof. All proceeds of any such sale, after deducting the
reasonable expenses and reasonable attorneys' fees incurred in
connection with such sale, shall be applied in reduction of the
Obligations, and the remainder, if any, shall be paid to the Pledgor.
8. Application of Proceeds; Release. The proceeds of any sale or
enforcement of or against all or any part of the Collateral, and any other cash
or collateral at the time held by the Pledgees hereunder, shall be applied by
the Pledgees first to the payment of the reasonable costs of any such sale or
enforcement, then to reimburse the Pledgees for any damages, costs or expenses
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incurred by the Pledgees as a result of an Event of Default, then to the payment
of the principal amount or stated valued (as applicable) of, and interest or
dividends (as applicable) and any other payments due in respect of, the
Obligations. The remainder, if any, shall be paid to the Pledgor. As used in
this Agreement, "proceeds" shall mean cash, securities and other property
realized in respect of, and distributions in kind of, the Collateral, including
any thereof received under any reorganization, liquidation or adjustment of debt
of any issuer of securities included in the Collateral.
9. Representations and Warranties.
(a) The Pledgor hereby represents and warrants to the Pledgees
that:
(i) the Pledgor has full power and authority and legal
right to pledge the Collateral to the Pledgees pursuant to this
Agreement and this Agreement constitutes a legal, valid and binding
obligation of the Pledgor, enforceable in accordance with its terms.
(ii) the execution, delivery and performance of this
Agreement and other instruments contemplated herein will not violate
any provision of any order or decree of any court or governmental
instrumentality or of any mortgage, indenture, contract or other
agreement to which the Pledgor is a party or by which the Pledgor and
the Collateral may be bound, and will not result in the creation or
imposition of any lien, charge or encumbrance on, or security interest
in, any of the Pledgor's properties pursuant to the provisions of such
mortgage, indenture, contract or other agreement.
(iii)the Pledgor is the sole record and beneficial owner of
all of the Shares; and
(iv) the Pledgor owns the Collateral free and clear of all
Liens.
(b) The Company represents and warrants to the Pledgees that:
(i) it has no knowledge that any of the representations or
warranties of the Pledgor herein are incorrect or false in any
material respect;
(ii) all of the Shares were validly issued, fully paid and
non-assessable; and
(iii) the Pledgor is the record holder of the Shares.
10. No Waiver; No Election of Remedies. No failure on the part of the
Pledgees to exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise by the Pledgees of any right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein provided are cumulative and are not exclusive of any
remedies provided by law. In addition, the exercise of any right or remedy of
the Pledgees at law or equity or under this Agreement or any of the documents
shall not be deemed to be an election of Pledgee's rights or remedies under such
documents or at law or equity.
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11. Termination. This Agreement shall terminate on the date on which
all Obligations have been performed, satisfied, paid or discharged in full.
12. Further Assurances. The parties hereto agree that, from time to
time upon the written request of any party hereto, they will execute and deliver
such further documents and do such other acts and things as such party may
reasonably request in order fully to effect the purposes of this Agreement. The
Pledgees acknowledge that they are aware that Pledgor shall have no obligations
whatsoever to the Pledgees beyond the Collateral pledged for the Obligations set
forth herein, and no request for further assurance may or shall increase such
Obligations.
13. Miscellaneous.
(a) Modification. This Agreement contains the entire
understanding between the parties with respect to the subject matter hereof and
specifically incorporates all prior oral and written agreements relating to the
subject matter hereof. No portion or provision of this Agreement may be changed,
modified, amended, waived, supplemented, discharged, canceled or terminated
orally or by any course of dealing, or in any manner other than by an agreement
in writing, signed by the party to be charged.
(b) Notice. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section prior to 6:30 p.m. (New
York City time) on a Business Day (as defined in the Purchase Agreement), (ii)
the Business Day after the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile telephone number specified in this
Agreement later than 6:30 p.m. (New York City time) on any date and earlier than
11:59 p.m. (New York City time) on such date, (iii) the Business Day following
the date of mailing, if sent by nationally recognized overnight courier
services, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be
as follows:
If to the Company: QT 5, Inc.
5655 Lindero Canyon Road
Suite 120
Westlake Village, California 91362
Attention: Chief Executive Officer
Telephone: 818-338-1510
Facsimile: 818-338-1551
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With copies to: Sichenzia Ross Friedman Ference LLP
1065 Avenue of the Americas
New York, New York 10018
Attention: Gregory Sichenzia, Esq.
Telephone: 212-930-9700
Facsimile: 212-930-9725
If to the Pledgor: Timothy J. Owens
c/o QT 5, Inc.
5655 Lindero Canyon Road
Suite 120
Westlake Village, California 91362
Attention: Chief Executive Officer
Telephone: 818-338-1510
Facsimile: 818-338-1551
If to the Pledgees: AJW Partners, LLC
AJW Offshore, Ltd.
AJW Qualified Partners, LLC
New Millennium Capital Partners II, LLC
1044 Northern Boulevard
Suite 302
Roslyn, New York 11576
Facsimile No.: (516) 739-7115
Attn: Corey S. Ribotsky
With copies to: Ballard Spahr Andrews & Ingersoll, LLP
1735 Market Street, 51st Fl.
Philadelphia, PA 19103
Facsimile No.: (215) 864-8999
Attn: Gerald J. Guarcini, Esquire
(c) Invalidity. If any part of this Agreement is contrary to,
prohibited by, or deemed invalid under applicable laws or regulations, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited or invalid, but the remainder hereof shall not be invalidated thereby
and shall be given effect so far as possible.
(d) Benefit of Agreement. This Agreement shall be binding upon
and inure to the parties hereto and their respective successors and assigns.
(e) Mutual Agreement. This Agreement embodies the arm's length
negotiation and mutual agreement between the parties hereto and shall not be
construed against either party as having been drafted by it.
(f) New York Law to Govern. This Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
New York without regard to the principals of conflicts of law thereof. Each
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party hereby irrevocably submits to the exclusive jurisdiction of the state and
Federal courts sitting in the city of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court or that
such suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address in effect for notices to it under this agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law.
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IN WITNESS WHEREOF, the parties hereto have caused this Guaranty and Pledge
Agreement to be duly executed by their respective authorized persons as of the
date first indicated above.
QT 5, INC.
By:
--------------------------------------
Timothy J. Owens
Chief Executive Officer
PLEDGEES:
AJW PARTNERS, LLC
By: SMS Group, LLC
By:
--------------------------------------
Corey S. Ribotsky
Manager
AJW OFFSHORE, LTD.
By: First Street Manager II, LLC
By:
--------------------------------------
Corey S. Ribotsky
Manager
AJW QUALIFIED PARTNERS, LLC
By: AJW Manager, LLC
By:
--------------------------------------
Corey S. Ribotsky
Manager
NEW MILLENNIUM CAPITAL PARTNERS II, LLC
By: First Street Manager II, LLC
By:
--------------------------------------
Corey S. Ribotsky
Manager
[Signatures Continued on Following Page]
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PLEDGOR:
----------------------------------------
Timothy J. Owens
3,400,000 shares of Common Stock
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