CONFIRMATORY PLEDGE AGREEMENT
CONFIRMATORY
PLEDGE AGREEMENT
CONFIRMATORY
PLEDGE AGREEMENT dated as of December 15, 2006 between ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, an
individual with an address at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
“Pledgor”),
and
Thai ▇▇▇, an individual with an address at c/o Software House International,
Inc., ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Pledgee”).
PRELIMINARY
STATEMENT
This
Agreement is being entered into in furtherance of that certain Letter Agreement
(the “Letter
Agreement”)
dated
March 3, 2006 between Pledgor and Pledgee and in order to confirm the pledge
of
securities contemplated thereby. Unless the context otherwise requires,
capitalized terms used but not defined herein shall have the meanings given
to
such terms in the Letter Agreement.
Pledgee
loaned to Pledgor $8,072,008.39 (the “Loan”)
and
Pledgor agreed to use the proceeds of the Loan to acquire shares of common
stock
of Arbinet- theExchange, Inc. (“ARBX”)
or to
meet certain margin calls in respect thereof.
Pledgor
and its affiliates own shares of ARBX (the “ARBX
Shares”)
listed
on Schedule I hereto.
Pledgor
is today delivering to Pledgee a series of Promissory Notes (the “Promissory
Notes”)
evidencing the obligation of Pledgor to pay to Pledgee $3,500,000 principal
amount of the Loan not later than May 31, 2007, $1,600,000 principal amount
of
the Loan not later than May 31, 2007, $350,000 principal amount of the Loan
not
later than April 30, 2007 and $2,622,008.39 principal amount of the Loan not
later than April 30, 2007, and Pledgee has agreed to accept the Promissory
Notes
on the condition that Pledgor grants to Pledgee a perfected security interest
in
the assets of Pledgor.
Pledgor
has agreed to pledge to Pledgee the ARBX Shares, the shares (the “PWHT
Shares”)
of
Migo Software, Inc., formerly Powerhouse Technologies Group, Inc. (“PWHT”)
and
the membership interests (the “Q
Limo Shares”)
of Q
Limo LLC (“Q
Limo”)
set
forth on Schedule I which are owned by Pledgor or an affiliate of Pledgor,
as
security for the payment by Pledgor of the Loan.
NOW
THEREFORE, for good and valuable consideration, the sufficiency and receipt
of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereunder agree as follows:
1. Pledge.
1.1 Pledge.
As
security for (a) the due, full and punctual payment of all amounts and
liabilities specified in this Agreement, the Promissory Notes, and in any other
agreement or instrument delivered to Pledgee by Pledgor (such agreements and
instruments are collectively referred to as the “Ancillary
Documents”),
(b)
the due, punctual and faithful performance of and compliance with all other
obligations, terms, conditions, covenants, representation and warranties and
agreements arising under this Agreement, the Promissory Notes or any Ancillary
Document, and (c) all expenses, costs and fees, including but not limited to
attorneys' fees and expenses, incurred by Pledgee in connection with the
collection of all amounts due by Pledgor to Pledgee, perfection and enforcement
of Pledgee's security interest in the Pledged Securities and the maintenance,
preservation, taking possession of and disposition of the Pledged Securities
(collectively referred to herein as the “Obligations”),
Pledgor hereby transfers, hypothecates, pledges, sets over and delivers unto
Pledgee and grants to Pledgee a security interest in, all right, title and
interest Pledgor now has or hereafter may acquire in (a) the ARBX Shares, the
PWHT Shares, the Q Limo Shares and all other securities of ARBX, PWHT and Q
Limo
obtained in the future by Pledgor or any affiliate of Pledgor and the
certificates representing or evidencing all such interests, (b) all other
property which may be delivered to and held by Pledgee pursuant to the terms
hereof, (c) all payments of principal, interest, dividends, cash, instruments
and other property from time to time received, receivable or otherwise
distributed in respect of, in exchange for or upon the conversion of the
securities referred to in clause (a) or clause (b) above, (d) except as provided
in Section 4 below, all rights and privileges of Pledgor with respect to the
securities and other property referred to in clauses (a), (b) and (c) above,
and
(e) all proceeds of any of the foregoing (the items referred to in clauses
(a)
through (e) being collectively called the “Pledged
Securities”).
All
stock certificates, notes or other securities or instruments now or hereafter
included in the Pledged Securities shall be duly endorsed to Pledgee or
accompanied by stock powers duly executed in blank or other instruments of
transfer satisfactory to Pledgee and by such other instruments and documents
as
Pledgee may reasonably request, and all other property comprising part of the
Pledged Securities shall be accompanied by proper instruments of assignment
duly
executed by Pledgor or, if owned by an affiliate of Pledgor, by such affiliate
and such other instruments or documents as Pledgee may reasonably
request.
1.2 Delivery
of the Pledged Securities.
Pledgor
has delivered certain shares (as described on Schedule I) to the account of
Pledgee. The parties hereto acknowledge that such shares are part of the Pledged
Securities described herein and any certificates or instruments that have been
delivered to Pledgee with respect to such shares are part of the Pledged
Securities and such shares have not been delivered to Pledgee in satisfaction
of
the Loan. In addition, concurrent with the execution and delivery of this
Agreement, Pledgor shall deliver, or cause its affiliate to deliver,
certificates representing the ARBX Shares, the PWHT Shares and the Q Limo Shares
accompanied by stock powers duly endorsed in blank in proper form for transfer
to Pledgee, and Pledgor shall immediately upon receipt deliver or cause to
be
delivered to Pledgee any and all certificates or other instruments or documents
representing additional Pledged Securities, endorsed or assigned in blank or
in
favor of Pledgee, as directed by Pledgee and Pledgor shall deliver or cause
to
be delivered to Pledgee certificates or instruments for all other securities
obtained in the future by Pledgor or any affiliate of Pledgor.
2. Representations,
Warranties and Covenants.
Pledgor
hereby represents, warrants and covenants to and with Pledgee that:
2.1 Pledgor
(a) is and will at all times continue to be the direct owner, beneficially
and
of record, of the Pledged Securities, (b) holds the same free and clear of
any
and all liens, charges, claims, security interests, pledges, rights of first
refusal, preemptive rights, hypothecations or other encumbrances (collectively,
“Liens”),
(c)
will make no assignment, pledge, hypothecation or transfer of, or create any
Lien in, the Pledged Securities, (d) will cause all securities included within
the Pledged Securities to be certificated securities, and (e) will cause any
and
all certificates, instruments or other documents representing or evidencing
Pledged Securities to be forthwith deposited with Pledgee and pledged or
assigned thereunder. If the Pledged Securities shall hereafter become subject
to
any Lien, (other than with the express written consent of Pledgee), Pledgor
warrants that it will immediately undertake to secure the release of such
Pledged Securities from such Lien claim at Pledgor’s own cost and expense.
Pledgor will appear in and defend any action or proceeding which may affect
the
security interest of Pledgee.
2
2.2 The
shares of ARBX stock listed on Schedule I include all of the shares purchased
by
Pledgor with the proceeds of the Loan.
2.3 By
virtue
of the execution and delivery by Pledgor of this Agreement and the delivery
of
the Pledged Securities to Pledgee in accordance with this Agreement, Pledgee
will obtain a valid, legal and perfected first priority lien and security
interest in such Pledged Securities as security for the repayment of the
Obligations, free and clear of all Liens.
2.4 All
financial information (and all information relating to the Pledged Securities)
heretofore submitted to Pledgee by Pledgor or at Pledgor’s request is true and
correct, and all financial information hereafter submitted to Pledgee by Pledgor
or at Pledgor’s request will be true and correct when given.
2.5 Pledgor
shall promptly reimburse Pledgee for any and all legal and accounting expenses,
including reasonable attorneys’ and accountants’ fees and court costs incurred
in collecting any sums payable by Pledgor in enforcing this Agreement or any
obligations secured thereby or in verifying, handling, retrieving, repossessing,
selling or otherwise disposing of the Pledged Securities, all of which sums
shall become part of the indebtedness secured hereby.
2.6 Pledgor
shall not grant any security interest to anyone other than Pledgee in any of
the
Pledged Securities without Pledgee’s prior written consent.
3. Delivery
of Notice; Denominations.
Pledgor
shall promptly give to Pledgee copies of any notices or other communications
received by it with respect to Pledged Securities registered in the name of
Pledgor. Pledgee shall at all times have the right to exchange the certificates
representing Pledged Securities for certificates of smaller or larger
denominations for any purposes consistent with this Agreement.
4. Voting
Rights; Dividends and Interests.
4.1 Except
as
provided in Section 4.2 and 4.3:
4.1.1 Pledgor
shall be entitled to exercise any and all voting rights accruing to it as the
owner of Pledged Securities for any purpose consistent with the terms of this
Agreement, the Promissory Notes and the Ancillary Documents so long as such
exercise of rights could not, and could not reasonably be expected to, adversely
affect the rights and remedies of Pledgee under this Agreement, the Promissory
Notes or the Ancillary Documents or the ability of Pledgee to exercise the
same.
3
4.1.2 Pledgee
shall execute and deliver to Pledgor, or cause to be executed and delivered
to
Pledgor, all such proxies, powers of attorney, and other instruments as Pledgor
may reasonably request for the purpose of enabling Pledgor to exercise the
voting rights which it is entitled to exercise pursuant to Section
4.1.1.
4.1.3 All
payments, dividends and distributions made on or in respect of Pledged
Securities, whether paid or payable in cash, securities or other property,
and
whether resulting from a subdivision, combination or reclassification of the
outstanding capital stock of the issuer of any Pledged Securities or received
in
exchange for or in redemption of Pledged Securities or any part thereof, or
as a
result of any merger, consolidation, acquisition or other exchange of assets
to
which such issuer may be a party or otherwise, shall be and become part of
the
Pledged Securities and, if received by Pledgor, shall not be commingled by
Pledgor with any of its other funds or property but shall be held separate
and
apart therefrom in trust for the benefit of Pledgee and shall be delivered
to
Pledgee in the same form as so received (with any necessary
endorsement).
4.1.4 Prior
to
the occurrence of an event of Default, Pledgor may, on three business days'
notice to Pledgee, sell the Pledged Securities; provided that (a) Pledgee
complies with the terms of the Promissory Notes evidencing the Loans and (b)
such sales are made in the ordinary course of business.
4.2 Upon
the
occurrence of any event of Default under this Agreement, all rights of Pledgor
to dividends which Pledgor is authorized to receive pursuant to Section 4.1.3
shall cease, and all such rights shall thereupon become vested in Pledgee,
who
shall have the sole and exclusive right and authority to receive and retain
such
dividend payments. All dividends which are received by Pledgor contrary to
the
provisions of this Section 4.2 shall be received in trust for the benefit of
Pledgee, shall be segregated from other property or funds of Pledgor and shall
be immediately delivered to Pledgee in the same form as so received (with any
necessary endorsement). Any and all money and other property paid over to or
received by Pledgee pursuant to the provisions of this Section 4.2 shall be
deposited by Pledgee in an account to be established by Pledgee for the benefit
of Pledgee, upon receipt of such money or other property and shall be applied in
accordance with the provisions of Section 7.
4.3 Upon
the
occurrence of any event of Default under this Agreement, all rights of Pledgor
to exercise the voting rights which it is entitled to exercise pursuant to
Section 4.1.1 shall immediately cease, and all such rights shall thereupon
become vested in Pledgee, which shall have the sole and exclusive right (but
not
the obligation) and authority to exercise such voting rights. Pledgor shall
execute and deliver to Pledgee all such proxies, powers of attorney, and other
instruments as Pledgee shall request for the purpose of enabling Pledgee to
exercise the voting rights which it is entitled to exercise pursuant to this
Section 4.3.
4
5. Default.
Any one
of the following events shall constitute a default (“Default”)
of
Pledgor’s performance hereunder:
5.1 Failure
of Pledgor to pay or perform as and when due any of the
Obligations.
5.2 Failure
of Pledgor to perform or observe any of the material terms, conditions,
covenants, representations or warranties contained in this Agreement, the
Promissory Notes or any Ancillary Document.
5.3 Failure
to pay when due (including within any applicable grace period) any indebtedness
evidenced by or included in or secured or covered by any bond, note, indenture,
loan agreement, guaranty, trust agreement, mortgage or similar instrument to
which Pledgor is a party or by which he is bound, or by which any of his
properties or assets may be affected (a “Debt
Instrument”)
or
failure to perform any term, condition or covenant of any Debt Instrument so
that, as a result of such failure and the passage of any applicable grace
period, the indebtedness evidenced thereby is or may be declared due and payable
prior to the date on which such indebtedness would otherwise become due and
payable.
5.4 The
filing by Pledgor of a petition under any section or chapter of the Federal
Bankruptcy Code; the making by Pledgor of an assignment for the benefit of
creditors; the filing by Pledgor of a proceeding for dissolution or liquidation;
the appointment of or the application for the appointment of a receiver,
trustee, controller or custodian for all or part of the assets of Pledgor;
the
attempt of Pledgor to make an adjustment, settlement or extension of its debts
with his creditors generally.
5.5 Pledgor’s
becoming insolvent, becoming unable to meet his obligations as they come
due.
5.6 The
issuance of a writ of attachment, garnishment, execution or similar legal
process against Pledgor or any of Pledgor’s property, which remains unstayed,
undismissed and undischarged for 60 days or more.
5.7 The
making of any assessment for taxes against Pledgor by the United States of
America, any state or any subdivision of either, which remains unstayed,
undismissed and undischarged for 60 days or more.
5.8 Pledgor
shall have concealed, removed or permitted to be concealed or removed any part
of his property, with intent to hinder, delay or defraud any of his creditors,
or made or suffered a transfer of any of his property which may be fraudulent
under any bankruptcy, fraudulent conveyance or similar law; or shall have made
any transfer of his property to or for the benefit of a creditor at a time
when
other creditors similarly situated have not been paid; or shall have suffered
or
permitted, while insolvent, any creditor to obtain a lien upon any of his
property through legal proceedings or distraint which is not vacated within
30
days from the date thereof.
5.9 There
shall have been a material adverse change in the financial condition, property
or assets of Pledgor.
5
6. Remedies
upon Default.
Upon the
occurrence of a Default, whether or not all of the Obligations shall have become
due and payable, in addition to its rights under this Agreement, the Promissory
Notes or any Ancillary Document:
6.1 Pledgee
may, without notice to or demand upon Pledgor, declare any and all Obligations
immediately due and payable;
6.2 Pledgee
shall have all of the rights and remedies with respect to the Pledged Securities
of a secured party under the Uniform Commercial Code as in effect in the State
of Tennessee (whether or not said Code is in effect in the jurisdiction where
the rights and remedies are asserted) and such additional rights and remedies
to
which a secured party is entitled under the laws in effect in any jurisdiction
where any rights and remedies hereunder may be asserted (to the extent such
other rights are not inconsistent with the provisions of this Agreement),
including without limitation the right, to the maximum extent permitted by
law,
to exercise all voting, consensual and other powers of ownership pertaining
to
the Pledged Securities as if Pledgee were the sole and absolute owner thereof
(and Pledgor agrees to take all such action as may be appropriate to give effect
to such right);
6.3 Pledgee
in its discretion may, consistent with the other provisions of this Agreement,
in its name or in the name of Pledgor or otherwise, demand, ▇▇▇ for, collect
or
receive any money or property at any time payable or receivable on account
of or
in exchange for any of the Pledged Securities, but shall be under no obligation
to do so;
6.4 Pledgee
may, upon five days’ prior written notice to Pledgor, with respect to the
Pledged Securities or any part thereof which shall then be or shall thereafter
come into the possession, custody or control of Pledgee, or any of its agents,
sell, lease, assign or otherwise dispose of all or part of the Pledged
Securities, at such place or places as Pledgee deems best, and for cash or
for
credit or for future delivery (without thereby assuming any credit risk), at
public or private sale, without demand of performance or notice of intention
to
effect any such disposition or of the time or place thereof (except such notice
as is required above or by applicable statute and cannot be waived), and Pledgee
or anyone else may be the purchaser, lessee, assignee or recipient of any or
all
of the Pledged Securities so disposed of at any public sale (or, to the extent
permitted by law, at any private sale) and thereafter hold the same absolutely,
free from any claim or right of whatsoever kind, including any right or equity
of redemption (statutory or otherwise) of Pledgor, any such demand, notice
and
right or equity being hereby expressly waived and released. During such five-day
period, Pledgor may satisfy the Obligations and/or substitute collateral for
the
Pledged Securities which shall be acceptable to Pledgee, in its sole and
absolute discretion. Pledgee may, without notice or publication, adjourn any
public or private 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 sale may be so adjourned; and
6.5 Pledgor
recognizes that, by reason of certain prohibitions contained in the Securities
Act of 1933, as amended, and applicable state securities laws, Pledgee may
be
compelled, with respect to any sale of all or any part of the Pledged
Securities, to limit purchasers to those who will agree, among other things,
to
acquire the collateral for their own account, for investment and not with a
view
to the distribution or resale thereof. Pledgor acknowledges that any such
private sales may be at prices and on terms less favorable to Pledgee than
those
obtainable through a public sale without such restrictions, and, notwithstanding
such circumstances, agrees that any such private sale shall be deemed to have
been made in a commercially reasonable manner and that Pledgee shall have no
obligation to engage in public sales and no obligation to delay the sale of
any
Pledged Securities for the period of time necessary to permit registration
of
such Pledged Securities for public sale.
6
7. Application
of Proceeds of Sale.
Pledgee
may apply the cash proceeds actually received from any sale or other disposition
of the Pledged Securities to the expenses of retaking, holding, preparing for
sale, selling, advertising and the like, to attorneys’ fees and all legal,
travel and other expenses which may be incurred by Pledgee in attempting to
collect any of the Obligations or enforce this Agreement or in the prosecution
or defense of any action or proceeding related to the subject matter of this
Agreement; and then to the Obligations in such order and as to principal or
interest as Pledgee may desire; and Pledgor shall remain liable and shall pay
Pledgee on demand any deficiency remaining, together with interest thereon
at
the highest rate then payable on the Obligations and the balance of any expenses
unpaid, with any surplus to be paid to Pledgor.
8. Pledgee
Appointed Attorney-in-Fact.
Except
as otherwise provided herein, Pledgor hereby appoints Pledgee the
attorney-in-fact of Pledgor for the purposes of carrying out the provisions
of
this Agreement or taking any action or executing any instrument which Pledgee
may deem necessary or advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an interest. Without limiting the
generality of the foregoing, Pledgee shall have the right, upon the occurrence
of a Default, with full power of substitution either in Pledgee’s name or in the
name of Pledgor, to ask for, demand, ▇▇▇ for, collect, receive and give
acquittance for any and all monies due or to become due under or by virtue
of
the Pledged Securities, to endorse checks, drafts, orders and other instruments
for the payment of money payable to Pledgor constituting Pledged Securities
or
any part thereof or on account thereof and to give full discharge for the same,
to settle, compromise, prosecute or defend any action, claim or proceeding
with
respect thereto, and to sell, assign, endorse, pledge, transfer and make any
agreement respecting, or otherwise deal with, the same; provided, however,
that
nothing herein contained shall be construed as requiring or obligating Pledgee
to make any commitment or to make any inquiry as to the nature or sufficiency
of
any payment received by Pledgee, or to present or file any claim or notice,
or
to take any action with respect to the Pledged Securities or any part thereof
or
the monies due or to become due in respect thereof or any property covered
thereby, and no action taken by Pledgee or omitted to be taken with respect
to
the Pledged Securities or any part thereof shall give rise to any defense,
counterclaim or offset in favor of any Pledgor or to any claim or action against
Pledgee, except in the case of, and then solely to the extent of the proximate
damage resulting from the, gross negligence or willful misconduct by
Pledgee.
9. No
Waiver.
No
failure on the part of Pledgee 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 of any such right, power or remedy by Pledgee
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law. Pledgee shall not be deemed
to
have waived any rights hereunder or under any other agreement or instrument
unless such waiver shall be in writing and signed by such parties.
7
10. Security
Interest Absolute.
10.1 All
rights of Pledgee hereunder, the grant of a security interest in the Pledged
Securities and all obligations of Pledgor hereunder shall be absolute and
unconditional irrespective of (a) any lack of validity or enforceability of
this
Agreement, the Ancillary Documents, any agreement with respect to any of the
Obligations or any other agreement or instrument relating to any of the
foregoing, (b) 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 terms of this Agreement, the
Ancillary Documents or any other agreement or instrument, (c) any exchange,
release, amendment or waiver of, or consent to or departure from, any guaranty
for all or any of the Obligations or (d) any other circumstance which might
otherwise constitute a defense available to, or a discharge of, Pledgor in
respect of the Obligations or in respect of this Agreement or the Ancillary
Documents.
10.2 Upon
payment of all of the Obligations to Pledgee, Pledgee shall return to Pledgor
all of the Pledged Securities which has not been transferred, sold or otherwise
applied pursuant to this Agreement or previously returned to Pledgor. Until
such
termination, this Agreement shall bind Pledgor and its successors and assigns,
and shall inure to the benefit of Pledgee and its successors and
assigns.
11. Further
Assurances.
Pledgor
agrees to do such further acts and things, and to execute and deliver such
additional conveyances, assignments, agreements and instruments, as Pledgee
may
at any time request in connection with the administration and enforcement of
this Agreement, with respect to the Pledged Securities or any part thereof
or in
order better to assure and confirm unto Pledgee its rights and remedies
hereunder.
12. Pledgee’s
Fees and Expenses.
Pledgor
agrees to pay upon demand to Pledgee the amount of any and all expenses,
including the reasonable fees and expenses of its counsel and of any experts
or
agents, which Pledgee may incur in connection with (a) the administration of
this Agreement, (b) the custody or preservation of, or the sale of, collection
from, or other realization upon, any of the Pledged Securities, (c) the exercise
or enforcement of any of the rights of Pledgee hereunder, or (d) the failure
by
Pledgor to perform or observe any of the provisions hereof. Any such amounts
payable as provided hereunder or thereunder shall be additional obligations
secured by this Agreement.
13. Entire
Agreement; Binding Agreement; Assignments.
This
Agreement contains the entire agreement between the parties concerning its
subject matter, and supersedes and replaces all prior agreements and
understandings including, but not limited to, the Letter Agreement, with respect
to such subject matter. This Agreement, and the terms, covenants and conditions
hereof, shall be binding upon and inure to the benefit of the parties hereto
and
their respective successors and permitted assigns, except that Pledgor shall
not
assign or transfer this Agreement or any interest herein or the Pledged
Securities or any part thereof. Pledgor shall not pledge, encumber or grant
any
option with respect to the Pledged Securities or any part thereof, except as
contemplated by this Agreement.
8
14. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Delaware and any choice of law or conflict of law provision or
rule
(whether of the State of Delaware or any other jurisdiction) that would cause
the application of laws of all jurisdictions other than the State of
Delaware.
15. Waiver
of Jury Trial.
Pledgor
hereby waives, to the extent permitted by applicable law, trial by jury in
any
litigation in any court with respect to, in connection with, or arising out
of
this Agreement, or the validity, protection, interpretation, collection or
enforcement hereof; and Pledgor hereby waives, to the extent permitted by
applicable law, the right to interpose any setoff or counterclaim or cross-claim
in connection with any such litigation, irrespective of the nature of such
setoff, counterclaim or crossclaim. Notwithstanding anything contained in this
Agreement to the contrary, no claim may be made by Pledgor against Pledgee
for
any lost profits or any special, indirect or consequential damages in respect
of
any breach or wrongful conduct (other than willful misconduct constituting
actual fraud) in connection with, arising out of or in any way related to the
transactions contemplated hereunder, or any act, omission or event occurring
in
connection therewith; and Pledgor hereby waives, releases and agrees not to
▇▇▇
upon any such claim for any such damages.
16. Notices. All
notices hereunder shall be in writing and be given by registered or certified
mail, return receipt requested, postage and registration fess prepaid, and
shall
be deemed given when so mailed as follows:
|
If
to Pledgor:
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile
No.: [________]
|
|
with
a copy to:
|
▇▇▇▇▇
& ▇▇▇ ▇▇▇▇▇▇ LLP
▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
|
If
to Pledgee:
|
▇/▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, Inc.
▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
|
with
a copy to:
|
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
9
17. Severability.
In case
any one or more of the provisions contained in this Agreement should be invalid,
illegal or unenforceable in any respect, no party hereto shall he required
to
comply with such provision for so long as such provision is held to be invalid,
illegal or unenforceable and the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired. The parties shall endeavor in good faith negotiations to replace
the
invalid, illegal and unenforceable provisions with valid provisions, the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
18. Section
Headings.
The
section and other headings used herein are for convenience only and are not
to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
19. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one instrument.
20. Continued
Effect.
Notwithstanding anything to the contrary contained in this Agreement, this
Agreement shall remain in full force and effect and continue to be effective
should any petition be filed by or against Pledgor for liquidation or
reorganization, should Pledgor become insolvent, or make an assignment for
any
benefit of creditors or should a receiver or trustee be appointed for all or
any
significant part of Pledgor’s assets and shall continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
obligations, or any part thereof, is, pursuant to applicable law, rescinded
or
reduced in amount, or must otherwise be restored or returned by any obligee
of
the obligations, whether as a “voidable, preference,” “fraudulent conveyance” or
otherwise, all as though such payment, or any part thereof, is rescinded,
reduced, restored or returned.
21. Rights
Cumulative.
All of
Pledgee’s rights and remedies with respect to the Pledged Securities, whether
established hereby or under, arising out of or in any way connected with this
Agreement, or by any other agreements, instruments or documents or by law,
shall
be cumulative and may be exercised singly or concurrently.
22. CONSENT
TO JURISDICTION AND SERVICE OF PROCESS.
ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST PLEDGOR WITH RESPECT TO THIS AGREEMENT
MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN NEW CASTLE
COUNTY IN THE STATE OF DELAWARE AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT
PLEDGOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS RESPECTIVE PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN
CONNECTION WITH THIS AGREEMENT (AND SUCH OTHER PERSONS AS MAY HEREAFTER BE
SELECTED BY PLEDGOR WITH THE CONSENT OF PLEDGEE AS ITS PLEDGEE) TO RECEIVE
ON
ITS BEHALF, SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT,
SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY PLEDGOR TO BE EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT. A COPY OF SUCH PROCESS SO SERVED SHALL BE MAILED
BY
REGISTERED MAIL TO PLEDGOR AT ITS ADDRESS PROVIDED HEREIN, EXCEPT THAT UNLESS
OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT
AFFECT THE VALIDITY OF SERVICE OF PROCESS. TO THE EXTENT PERMITTED BY LAW,
IF
ANY PLEDGEE APPOINTED BY PLEDGOR REFUSES TO ACCEPT SERVICE, PLEDGOR HEREBY
AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING
HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY
LAW OR SHALL LIMIT THE RIGHT OF PLEDGEE TO BRING PROCEEDINGS AGAINST PLEDGOR
IN
THE COURTS OF ANY OTHER JURISDICTION.
10
23. Facsimile
Signatures.
This
Agreement and any other document or agreement executed in connection herewith
(other than any document for which an originally executed signature page is
required by law) may be executed by delivery of a facsimile copy of an executed
signature page with the same force and effect as the delivery of an originally
executed signature page. If any party delivers a facsimile copy of a signature
page to this Agreement or any other document or agreement executed in connection
herewith, such party shall deliver an originally executed signature page within
three business days of delivering such facsimile signature page or at any time
thereafter upon request; provided, however, that the failure to deliver any
such
originally executed signature page shall not affect the validity of the
signature page delivered by facsimile, which has and shall continue to have
the
same force and effect as the originally executed signature page.
[The
remainder of this page has been intentionally left blank signature page
follows]
11
AMENDED
AND RESTATED JOINT FILING AGREEMENT
▇▇▇▇
▇▇▇▇▇▇▇▇▇, Governing Dynamics Investments, LLC, Thai ▇▇▇ and Thai ▇▇▇ 2003
Grat
Agreement A, each hereby agrees to, in accordance with Rule 13d-1(k) under
the
Securities Exchange Act of 1934, as amended, that the Schedule 13D filed
herewith , and any amendment thereto, relating to the shares of common stock,
$0.001 par value per share, of Arbinet-thexchange, Inc. are, and will be,
filed
jointly on behalf of such person. This agreement may be executed in two or
more
counterparts, each of which shall be deemed an original, but of all which
together shall constitute one and the same instrument.
GOVERNING
DYNAMICS
INVESTMENTS,
LLC
By:
_________________________________
▇▇▇▇
▇▇▇▇▇▇▇▇▇,
Sole
member and manager
____________________________________
▇▇▇▇
▇▇▇▇▇▇▇▇▇ (individually)
THAI
▇▇▇ 2003 GRAT AGREEMENT A
By:
_________________________________
Thai
▇▇▇,
Trustee
____________________________________
Thai
▇▇▇
(individually)
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement, or caused
this Agreement to be duly executed, as of the day and year first above
written.
PLEDGOR:
_____________________________
▇▇▇▇
▇▇▇▇▇▇▇▇▇
PLEDGEE:
_____________________________
THAI
▇▇▇
12
SCHEDULE
I
SHARES
DELIVERED TO PLEDGEE
ARBX
Shares
1,626,089
Shares
20,320
Shares
PWHT
Shares
2,955,500
Shares
Q
Limo
Shares
100%
of
the Q Limo Shares owned by Pledgor
13