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STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT, dated as of May 9, 2001 (this "Agreement"),
among ▇▇▇▇▇ Limited (the "Pledgor"), ▇▇▇▇▇▇.▇▇▇, Inc. (the "Company"), United
States Trust Company of New York, as agent for Global One Communications Pty,
Ltd. (the "Agent"), and Global One Communications Pty, Ltd. (the "Secured
Party").
WHEREAS, the Secured Party has entered into certain service order
contracts (collectively, the "Service Contracts") with Global Freeway Pty Ltd
("Global Freeway") for the provision by the Secured Party of certain
telecommunications and related services to Global Freeway;
WHEREAS, in connection with the Service Contracts, the Company and the
Secured Party have entered into that certain Letter of Guarantee, dated August
29, 2000 (the "Guarantee");
WHEREAS, in connection with its obligations under the Guarantee, the
Company has agreed to make payments to the Secured Party in accordance with the
payment schedule (the "Payment Schedule") attached hereto as Schedule II;
WHEREAS, the Pledgor is the owner of the shares (the "Pledged Shares")
of stock described in Schedule I hereto and issued by the Company;
WHEREAS, as security for the Company's payment obligations under the
Guarantee, the Pledgor desires to make the pledge contemplated by this
Agreement; and
WHEREAS, the Pledgor will derive substantial indirect benefit from
providing the pledge contemplated hereby.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements set forth herein, the parties hereto agree as follows:
SECTION 1. Pledge. The Pledgor hereby pledges to the Agent for the
benefit of the Secured Party, and grants to the Agent for the benefit of the
Secured Party a security interest in, the following (the "Pledged Collateral"):
(i) the Pledged Shares and the certificates representing the Pledged
Shares, and all dividends, cash, instruments and other property from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Pledged Shares; and
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(ii) all proceeds of any and all of the foregoing Pledged Collateral
(including, without limitation, proceeds that constitute property of the
types described above).
SECTION 2. Security for Obligations. This Agreement secures the payment
of all obligations of the Company now or hereafter existing under the Guarantee
(the "Obligations"), and all obligations of the Pledgor and the Company now or
hereafter existing under this Agreement (all such obligations of the Company and
the Pledgor being the "Secured Obligations"). Without limiting the generality of
the foregoing, this Agreement secures the payment of all amounts which
constitute part of the Obligations and would be owed by the Company to the
Secured Party under the Guarantee but for the fact that they are unenforceable
or not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Company.
SECTION 3. Delivery of Pledged Collateral. (a) Upon execution of this
Agreement, all certificates or instruments representing or evidencing the
Pledged Collateral shall be delivered to and held by the Agent pursuant hereto
and shall be in suitable form for transfer by delivery (subject to the receipt
of all documents required pursuant to Section 12(d) hereof), or shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to the Secured Party.
(b) Upon execution of this Agreement, the Company shall cause to be
delivered a legal opinion satisfactory in form and substance to the Secured
Party as to the perfection of the security interest granted hereunder.
SECTION 4. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) The Pledged Shares have been duly authorized and validly issued
and are fully paid and non-assessable.
(b) The Pledgor is the legal and beneficial owner of the Pledged
Collateral free and clear of any lien, security interest, option or other
charge or encumbrance except for the security interest created by this
Agreement and except that the Pledged Collateral may be subject to
restrictions on transfer pursuant to the Securities Act (as hereinafter
defined) and the rules and regulations of the Securities and Exchange
Commission.
(c) The pledge of the Pledged Shares pursuant to this Agreement
creates a valid and perfected first priority security interest in the
Pledged Collateral, securing the payment of the Secured Obligations.
(d) No consent of any other person or entity and no authorization,
approval, or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required (i) for the pledge by
the Pledgor of the Pledged Collateral
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pursuant to this Agreement or for the execution, delivery or performance of
this Agreement by the Pledgor, (ii) for the perfection or maintenance of
the security interest created hereby (including the first priority nature
of such security interest) or (iii) for the exercise by the Agent of the
voting or other rights provided for in this Agreement or the remedies in
respect of the Pledged Collateral pursuant to this Agreement (except as may
be required in connection with any disposition of any portion of the
Pledged Collateral by laws affecting the offering and sale of securities
generally).
(e) The Pledged Shares constitute the percentage of the issued and
outstanding shares of stock of the Company indicated on Schedule I.
(f) There are no conditions precedent to the effectiveness of this
Agreement that have not been satisfied or waived.
(g) The Pledgor has, independently and without reliance upon the Agent
or the Secured Party and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement.
SECTION 5. Further Assurances. The Pledgor agrees that at any time and
from time to time, at the expense of the Pledgor, the Pledgor will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Agent or the Secured
Party may reasonably request, in order to perfect and protect any security
interest granted or purported to be granted hereby or to enable the Agent to
exercise and enforce its rights and remedies hereunder with respect to any
Pledged Collateral.
SECTION 6. Voting Rights; Dividends; Etc. (a) So long as no Event of
Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise or refrain from
exercising any and all voting and other consensual rights pertaining to the
Pledged Collateral or any part thereof for any purpose not inconsistent
with the terms of this Agreement; provided, however, that the Pledgor shall
not exercise or refrain from exercising any such right if, in the Secured
Party's judgment, such action would have a material adverse effect on the
value of the Pledged Collateral or any part thereof, and, provided,
further, that the Pledgor shall give the Agent and the Secured Party at
least five days' written notice of the manner in which it intends to
exercise or the reasons for refraining from exercising, any such right.
(ii) The Pledgor shall be entitled to receive and retain any and all
dividends paid in respect of the Pledged Collateral, provided, however,
that any and all
(A) dividends paid or payable other than in cash in respect of,
and instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Pledged Collateral,
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(B) dividends and other distributions paid or payable in cash in
respect of any Pledged Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in redemption of,
or in exchange for, any Pledged Collateral,
shall be forthwith delivered to the Agent to hold as Pledged
Collateral and shall, if received by the Pledgor, be received in trust for
the benefit of the Agent, be segregated from the other property or funds of
the Pledgor, and be forthwith delivered to the Agent as Pledged Collateral
in the same form as so received (with any necessary endorsement or
assignment).
(iii) The Agent shall execute and deliver (or cause to be executed and
delivered) to the Pledgor all such proxies and other instruments as the
Pledgor may reasonably request for the purpose of enabling the Pledgor to
exercise the voting and other rights which it is entitled to exercise
pursuant to paragraph (i) above and to receive the dividends which it is
authorized to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default:
(i) All rights of the Pledgor (x) to exercise or refrain from
exercising the voting and other consensual rights which it would otherwise
be entitled to exercise pursuant to Section 6(a)(i) shall, upon notice to
the Pledgor by the Agent (pursuant to the instructions of the Secured
Party), cease and (y) to receive the dividends which it would otherwise be
authorized to receive and retain pursuant to Section 6(a) (ii) shall
automatically cease, and all such rights shall thereupon become vested in
the Agent who shall thereupon have the sole right to exercise or refrain
from exercising such voting and other consensual rights and to receive and
hold as Pledged Collateral such dividends.
(ii) All dividends which are received by the Pledgor contrary to the
provisions of paragraph (i) of this Section 6(b) shall be received in trust
for the benefit of the Agent, shall be segregated from other funds of the
Pledgor and shall be forthwith paid over to the Agent as Pledged Collateral
in the same form as so received (with any necessary endorsement or
assignment).
(c) For purposes of this Agreement, the term "Event of Default" shall
mean the failure to pay when due any of the amounts set forth on the Payment
Schedule attached hereto as Schedule II. The Secured Party shall notify the
Agent of the occurrence of an Event of Default hereunder.
SECTION 7. Transfers and Other Liens; Additional Shares. The Pledgor
agrees that it will not (i) sell, assign (by operation of law or otherwise) or
otherwise dispose
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of, or grant any option with respect to, any of the Pledged Collateral, or (ii)
create or permit to exist any lien, security interest, option or other charge or
encumbrance upon or with respect to any of the Pledged Collateral, except for
the security interest under this Agreement.
SECTION 8. Agent Appointed Attorney-in-Fact. The Pledgor hereby
appoints the Agent the Pledgor's attorney-in-fact, with full authority in the
place and stead of the Pledgor and in the name of the Pledgor or otherwise, from
time to time in the Agent's discretion to take any action and to execute any
instrument which the Agent may deem necessary or advisable to accomplish the
purposes of this Agreement (subject to the rights of the Pledgor under Section
6), including, without limitation, to receive, indorse and collect all
instruments made payable to the Pledgor representing any dividend or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same.
SECTION 9. Agent May Perform. If the Pledgor fails to perform any
agreement contained herein, the Agent may itself perform, or cause performance
of, such agreement and the expenses of the Agent incurred in connection
therewith shall be payable by the Pledgor pursuant to Section 13.
SECTION 10. The Agent Duties. The powers conferred on the Agent
hereunder are solely to protect its interest in the Pledged Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the safe
custody of any Pledged Collateral in its possession and the accounting for
moneys actually received by it hereunder, the Agent shall have no duty as to any
Pledged Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Pledged Collateral, whether or not the Agent or the Secured Party has or is
deemed to have knowledge of such matters, or as to the taking of any necessary
steps to preserve rights against any parties or any other rights pertaining to
any Pledged Collateral. The Agent shall be deemed to have exercised reasonable
care in the custody and preservation of any Pledged Collateral in its possession
if such Pledged Collateral is accorded treatment substantially equal to that
which the Agent accords its own property. In the absence of any direction from
the Secured Party, the Agent shall not be required to exercise any voting rights
with respect to the Pledged Collateral.
SECTION 11. Remedies upon Default. If any Event of Default shall have
occurred and be continuing:
(a) The Agent shall have the right, without notice to the Pledgor, to
transfer to or register in the name of the Agent or any of its nominees,
any or all of the Pledged Collateral. In addition, the Agent shall have the
right to exchange certificates or instruments representing or evidencing
Pledged Collateral for certificates or instruments of smaller or larger
denominations.
(b) The Agent may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on default
under the Uniform Commercial Code
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in effect in the State of New York at that time (the "Code") (whether or
not the Code applies to the affected Pledged Collateral), and may also,
without notice except as specified below, sell the Pledged Collateral or
any part thereof in one or more parcels at public or private sale, at any
exchange, broker's board or at any of the Agent's offices or elsewhere, for
cash, on credit or for future delivery, and upon such other terms as the
Agent (acting upon the instructions of the Secured Party) may deem
commercially reasonable. The Pledgor agrees that, to the extent notice of
sale shall be required by law, at least ten days' notice to the Pledgor of
the time and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. The Agent
shall not be obligated to make any sale of Pledged Collateral regardless of
notice of sale having been given. The Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(c) Any cash held by the Agent as Pledged Collateral and all cash
proceeds received by the Agent in respect of any sale of, collection from,
or other realization upon all or any part of the Pledged Collateral may be
held by the Agent as collateral for, and/or then or at any time thereafter
be applied (after payment of any amounts payable to the Agent hereunder) in
whole or in part against all or any part of the Obligations in such order
as the Secured Party shall determine. Any surplus of such cash or cash
proceeds held by the Agent and remaining after payment in full of all of
the Secured Obligations shall be paid over to the Pledgor or to whomsoever
may be lawfully entitled to receive such surplus.
SECTION 12. Registration Rights. If the Agent shall be instructed by
the Secured Party to exercise its right to sell all or any of the Pledged
Collateral pursuant to Section 11, the Company agrees that, upon request of the
Agent (acting upon the instructions of the Secured Party), the Company will, at
its own expense:
(a) execute and deliver all such instruments and documents, and do or
cause to be done all such other acts and things, as may be necessary or, in
the opinion of the Secured Party, advisable to register such Pledged
Collateral under the provisions of the Securities Act of 1933, as from time
to time amended (the "Securities Act"), and to cause the registration
statement relating thereto to become effective and to remain effective for
such period as prospectuses are required by law to be furnished, and to
make all amendments and supplements thereto and to the related prospectus
which, in the opinion of the Secured Party, are necessary or advisable, all
in conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto;
(b) use its best efforts to qualify the Pledged Collateral under the
state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of the Pledged Collateral, as requested
by the Agent (acting upon the instructions of the Secured Party);
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(c) make available to its security holders, as soon as practicable, an
earning statement which will satisfy the provisions of Section 11(a) of the
Securities Act; and
(d) do or cause to be done all such other acts and things as may be
necessary to make such sale of the Pledged Collateral or any part thereof
valid and binding and in compliance with applicable law, including, without
limitation, causing to be delivered to the Agent and the Secured Party, a
legal opinion, in form and substance satisfactory to the Agent and the
Secured Party, with respect to the transfer of the Pledged Shares to the
Agent or any of its nominees being in compliance with the requirements of
the Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto.
The Company further acknowledges the impossibility of ascertaining the amount of
damages which would be suffered by the Agent or the Secured Party by reason of
the failure by the Pledgor to perform any of the covenants contained in this
Section and, consequently, agrees that, if the Pledgor shall fail to perform any
of such covenants, it shall pay, as liquidated damages and not as a penalty, an
amount equal to the value of the Pledged Collateral on the date the Agent
(acting upon the instructions of the Secured Party) shall demand compliance with
this Section.
SECTION 13. Agent Provisions. (a) The Agent shall be entitled to the
fees set forth on Schedule III attached hereto for its services hereunder and
shall be reimbursed for all reasonable expenses, disbursements and advances
incurred or made by it in the performance of its duties hereunder. The Company
shall be solely responsible for payment of all amounts due to the Agent
hereunder.
(b) The Agent may resign and be discharged from its duties hereunder at
any time by giving written notice of such resignation to the Pledgor, the
Company and the Secured Party specifying a date (not less than thirty days after
the giving of such notice) when such resignation shall take effect (the
"Resignation Date"). Promptly after such notice, a successor agent shall be
appointed by the Secured Party, such successor agent to become Agent hereunder
upon the Resignation Date. The Agent shall continue to serve until its successor
is appointed hereunder. The Secured Party may at any time elect to substitute a
new Agent by giving notice thereof to the Pledgor, the Company and the Agent
then acting.
(c) The Agent shall have the power and authority expressly conferred
upon it in this Agreement and shall not be required to perform any act or do
anything not so expressly provided in this Agreement, except upon the written
instructions of the Secured Party. The Agent acting or refraining from acting in
good faith shall not be liable for any mistake of fact or error of judgment by
it or for any acts or omissions by it of any kind unless caused by its willful
misconduct or gross negligence, and shall be entitled to rely and shall be
protected in doing so, upon (i) any written notice, instrument or signature
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties duly authorized to do so and (ii) the advice of
counsel (which may be of the Agent's own choosing). The Agent shall have no
responsibility for the contents of any writing submitted to it hereunder and
shall be entitled to reasonably rely in good faith and without any liability,
upon the contents thereof.
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(d) The Company hereby agrees to indemnify the Agent and hold it
harmless against any and all liabilities incurred by it hereunder, including,
without limitation, any liabilities incurred in connection with any sale of the
Pledged Collateral in accordance with the terms hereof, except for liabilities
incurred by the Agent resulting from its own willful misconduct or gross
negligence.
(e) Without limiting the obligations of the Company under Section 13(d)
hereof, the Secured Party agrees to indemnify the Agent (to the extent the Agent
is not otherwise promptly reimbursed therefor by the Company, or reimbursed
pursuant to Section 11(c) hereof), against any and all liabilities incurred by
the Agent hereunder, including, without limitation, any liabilities incurred in
connection with any sale of the Pledged Collateral in accordance with the terms
hereof, except for liabilities incurred by the Agent resulting from its own
willful misconduct or gross negligence.
SECTION 14. Expenses. The Company will upon demand pay to the Agent and
the Secured Party, as applicable, the amount of any and all reasonable expenses,
including the reasonable fees and expenses of its counsel and of any experts and
agents, which the Agent or the Secured Party may incur in connection with (i)
the administration of this Agreement, (ii) the custody or preservation of, or
the sale of, collection from, or other realization upon, any of the Pledged
Collateral, (iii) the exercise or enforcement of any of the rights of the Agent
or the Secured Party hereunder or (iv) the failure by the Pledgor or the Company
to perform or observe any of the provisions hereof.
SECTION 15. Security Interest Absolute. The obligations of the Pledgor
under this Agreement are independent of the Obligations, and a separate action
or actions may be brought and prosecuted against the Pledgor to enforce this
Agreement, irrespective of whether any action is brought against the Company or
whether the Company is joined in any such action or actions. All rights of the
Agent and the Secured Party, the security interests hereunder, and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of the Guarantee or any
other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Guarantee, including,
without limitation, any increase in the Obligations resulting from the
provision by the Secured Party of additional services to Global Freeway;
(iii) any taking, exchange, release or non-perfection of any other
collateral, or any taking, release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Obligations;
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(iv) any manner of application of collateral, or proceeds thereof, to
all or any of the Obligations, or any manner of sale or other disposition
of any collateral for all or any part of the Obligations or any other
assets of the Company or any of its subsidiaries;
(v) any change, restructuring or termination of the corporate
structure or existence of the Company or any of its subsidiaries; or
(vi) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Company or a third party pledgor.
SECTION 16. Amendments, Etc. No amendment or waiver of any provision of
this Agreement, and no consent to any departure by the Pledgor herefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Agent and the Secured Party, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
SECTION 17. Addresses for Notices. All notices, requests, demands,
instructions and other communications hereunder shall be in writing and shall be
deemed to have been duly given (i) if delivered in person, (ii) three days after
being mailed by registered or certified mail (postage prepaid, return receipt
requested) from an address in the forty-eight contiguous United States to
another address in the forty-eight contiguous United States, (iii) upon receipt
if mailed as provided in clause (ii) above to or from an address other than in
the forty-eight contiguous United States, or (iv) in the case of transmission by
telecopier, when confirmation of receipt is obtained, in all cases to the
respective parties as set forth below; provided, however, that all notices to
the Agent hereunder shall be effective only upon the receipt thereof by the
Agent.
(i) If to the Pledgor, to:
▇▇▇▇▇ Limited
38/39 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Colombiere, St Helier
Jersey, Channel Islands
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Director
Telephone:
Facsimile:
(ii) If to the Secured Party, to:
Global One Communications Pty, Ltd.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Vice-President/General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) If to the Agent, to:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/7
(iv) If to the Company, to:
▇▇▇▇▇▇.▇▇▇, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇
Telephone: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: 44 207 451 2469
or to such other address as the party to whom notice is to be given may
have previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
SECTION 18. Continuing Security Interest. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall (i) remain in
full force and effect until the payment in full of the Obligations and all other
amounts payable under this Agreement, (ii) be binding upon the Pledgor, its
successors and assigns, and (iii) inure, together with the rights and remedies
of the Agent hereunder, to the benefit of, and be enforceable by, the Agent, the
Secured Party and their respective successors, transferees and assigns. Upon the
payment in full of the Obligations and all other amounts payable under this
Agreement, the security interest granted hereby shall terminate and all rights
to the Pledged Collateral shall revert to the Pledgor. Upon any such
termination, the Agent will, at the Pledgor's expense, return to the Pledgor
such of the Pledged Collateral as shall not have been sold or otherwise applied
pursuant to the terms hereof and execute, without recourse, representation or
warranty of any kind, and deliver to the Pledgor such documents as the Pledgor
shall prepare and reasonably request to evidence such termination, all at the
cost of the Pledgor.
SECTION 19. Governing Law; Terms. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York. Unless
otherwise defined herein, terms defined in Article 9 of the Code are used herein
as therein defined.
SECTION 20. Acknowledgments and Agreements.
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(a) The Company expressly acknowledges and agrees that the Secured
Party's willingness to enter into this Agreement shall not be construed as a
waiver of any power or right of the Secured Party to enforce the obligations of
the Company under the Guarantee. The Company expressly acknowledges and agrees
that the Secured Party is entitled to exercise all remedies available to it
under the Guarantee or by statute or by rule of law in connection with the
enforcement of the Guarantee. In no event shall the execution, delivery and
performance of this Agreement by the Company be deemed to be satisfaction of the
obligations of the Company under the Guarantee; provided, however, that any
proceeds resulting from the sale of the Pledged Shares pursuant hereto shall be
applied by the Secured Party to reduce the outstanding amount due and payable
under the Guarantee.
(b) The Company expressly acknowledges and agrees that this Agreement
shall not affect in any manner whatsoever the rights and remedies available to
the Secured Party with respect to the Service Contracts, including, without
limitation, the Secured Party's right to terminate the services provided under
the Service Contracts due to Global Freeway's failure to make the payments
required thereunder.
(c) Each of the Company and the Pledgor expressly waives any right it
may have to obtain from any court any injunctive relief, including, without
limitation, any temporary restraining order or preliminary injunction, against
the Secured Party, the Agent or any third party in connection with the exercise
by the Secured Party of any of its rights under this Agreement.
(d) The Company agrees to prepare and deliver at its own expense, and
to reimburse the Agent and the Secured Party, as applicable, for all expenses
incurred by such party in connection with, any filings required under the rules
and regulations of the Securities and Exchange Commission in connection with the
pledge of the Pledged Shares to the Agent hereunder.
(e) The Company agrees to reimburse the Agent and the Secured Party for
any and all filing fees and other expenses incurred by such parties in
connection with any ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ filing that may be required in connection
with the transactions contemplated hereunder.
(f) The Board of Directors of the Company has approved the terms of
this Agreement and the consummation of the transactions contemplated hereby,
including, without limitation, the exercise of remedies hereunder, and such
approval constitutes approval of this Agreement and the transactions
contemplated hereby under the provisions of Section 203 of the Delaware General
Corporation Law.
SECTION 21. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
▇▇▇▇▇ LIMITED, as the Pledgor
By: ___________________________________
Name:
Title:
▇▇▇▇▇▇.▇▇▇, INC., as the Company
By: __________________________________
Name:
Title:
GLOBAL ONE COMMUNICATIONS PTY, LTD., as the
Secured Party
By: ___________________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK, as the
Agent
By: ___________________________________
Name:
Title:
13
SCHEDULE I
Percentage of
Class of Stock Stock Certificate No. Par Value Number of Shares Outstanding Shares
-------------- --------------------- --------- ---------------- ------------------
Common Stock 3298 $0.001 10,000,000
14
SCHEDULE II
PAYMENT SCHEDULE
PAYMENT DATE AMOUNT
(AUSTRALIAN DOLLARS)
-------------- --------------------
27-Dec-00 200,000
5-Jan-01 200,000
10-Jan-01 200,000
17-Jan-01 200,000
24-Jan-01 200,000
31-Jan-01 200,000
31-Jan-01 12,500,000
7-Feb-01 200,000
14-Feb-01 200,000
21-Feb-01 200,000
28-Feb-01 200,000
7-Mar-01 200,000
14-Mar-01 200,000
21-Mar-01 200,000
28-Mar-01 200,000
31-Mar-01 12,500,000
31-Mar-01 19,927,000*
4-Apr-01 200,000
11-Apr-01 200,000
* Or such other amount as shall be agreed to by the Company and the Secured
Party prior to March 31, 2001.
15
SCHEDULE III
AGENT'S FEES
INITIAL CHARGE: $5,000.00
Covers the acceptance of appointment as Agent, including the complete study of
drafts of the Stock Pledge Agreement and all supporting documents in connection
therewith, conferences until the final Agreement is agreed upon and execution
thereof. Out-of-Pocket expenses associated with the closing, including the fees
and expenses of the Agent's counsel, will be billed to ▇▇▇▇▇▇.▇▇▇, Inc. at cost.
ANNUAL ADMINISTRATION CHARGES: $5,000.00
Covers administrative duties in connection with the provisions of the Stock
Pledge Agreement.
CUSTODIAL CHARGES: 3.50 Basis Points on the value of pledged assets held
This fee is will be computed and billed quarterly in arrears.
The above Custodial Charge is subject to an annual minimum of $2,500.00.
ACTIVITY CHARGES: where applicable
INTERIM INVESTMENT IN MONEY MARKET FUNDS:
No charge for investment in available money market funds
DIVIDEND COLLECTION:
Posting of Stock Dividends, each (Included)
WIRE TRANSFERS:
per outgoing wire: $25.00