STOCK PLEDGE AGREEMENT
STOCK
PLEDGE AGREEMENT
(this
“Agreement”),
dated
September 26, 2008 by and between interCLICK, Inc., a Delaware corporation
(the
“Pledgor”),
GRQ
Consultants, Inc. 401(k) (“GRQ”)
and
Xxxxx Xxxxx (“Xxxxx”
and
together with GRQ, the “Pledgees”);
WITNESSETH:
WHEREAS,
(i) GRQ
will
lend
$650,000.00 to the Pledgor, with such loan to be evidenced by a promissory
note
in the principal amount of $650,000.00 (the “GRQ
Note”)
and (ii)
Xxxxx will lend $650,000.00 to the Pledgor, with such loan to be evidenced
by a
promissory note in the principal amount of $650,000.00 (the “Xxxxx
Note”
and
together with the GRQ Note, the “Notes”);
WHEREAS,
in
order
to induce the Pledgees to make the above described loans and accept the Notes,
the Pledgor has agreed to secure all of the Pledgor’s obligations under the
Notes with the grant to the Pledgees of a first priority security interest
in
the stock identified on Schedule A hereto;
NOW,
THEREFORE,
in
consideration of the promises and the mutual covenants herein contained, and
for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereby agree as follows:
1. Definitions.
The
following terms shall have the following meanings wherever used in this
Agreement:
(a) “Event
of Default”
shall
have the meaning given thereto in the Notes.
(b) “Obligations”
shall
mean all principal and interest and other amounts which may be due and payable
under the Notes, whether upon stated maturity, by acceleration, or otherwise,
outstanding at any time and any amounts due and payable pursuant to this
Agreement.
(c) “Pledged
Stock”
shall
mean all the stock of Options Media Group Holdings, Inc., a Nevada corporation
(“OMGH”),
identified in Schedule A and all other property at any time pledged to the
Pledgees pursuant to Section 2(a) of this Agreement.
(d) “Satisfaction
Date”
shall
mean that date on which all of the Obligations have been paid or otherwise
indefeasibly satisfied in full.
2. Pledge
of the Pledged Stock/Additional Deposits.
(a) As
security for the due and timely payment and performance of all of the
Obligations, the Pledgor hereby pledges to the Pledgees, and grants to the
Pledgees a first priority lien and security interest in all of: (i) the Pledged
Stock (as same are constituted from time to time), together with all cash
dividends, stock dividends, interest, profits, premiums, redemptions, warrants,
subscription rights, options, substitutions, exchanges and other distributions
now or hereafter made on the Pledged Stock and all cash and non-cash proceeds
thereof; and (ii) all other property at any time pledged to the Pledgees
hereunder or in which the Pledgees are granted a security interest (whether
described herein or not) and all income therefrom and proceeds thereof. in
each
case until the Satisfaction Date.
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(b) In
furtherance of the pledge hereunder, the Pledgor will deliver to the Pledgees
not later than October 2, 2008, the certificates representing all of the Pledged
Stock, each of which now remains in the name of the Pledgor and is accompanied
by appropriate undated stock powers duly endorsed in blank by the Pledgor
bearing “medallion” signature guarantees.
(c) If,
while
this Agreement is in effect, the Pledgor becomes entitled to receive or receives
any stock certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or issued in connection
with
any reorganization), option or rights, whether as an addition to, in
substitution of, or in exchange for, any Pledged Stock or otherwise, the Pledgor
agrees to accept the same as agent for the Pledgees, to hold the same in trust
on behalf of and for the benefit of the Pledgees, and to deliver the same
promptly upon receipt to the Pledgees in the exact form received, with the
endorsement of the Pledgor when necessary and/or appropriate undated “medallion”
stock or other powers duly executed in blank, to be held by the Pledgees,
subject to the terms hereof, as additional collateral security for the
Obligations. Any sums paid on or in respect of the Pledged Stock on the
liquidation or dissolution of OMGH shall be paid over to the Pledgees, to be
held by the Pledgees, subject to the terms and conditions hereof, as additional
collateral security for the Obligations.
3. Retention
of the Pledged Stock.
(a) Except
as
otherwise provided herein, the Pledgees shall have no obligation with respect
to
the Pledged Stock, except to use reasonable care in the custody and preservation
thereof, to the extent required by law.
(b) The
Pledgees shall hold the Pledged Stock in the form in which same are delivered
herewith, unless and until there shall occur an Event of Default.
4. Rights
of the Pledgor.
Throughout the term of this Agreement, so long as no Event of Default has
occurred and is continuing, the Pledgor shall have the right to vote the Pledged
Stock in all matters presented to the stockholders of OMGH for vote thereon,
except in a manner inconsistent with the terms of this Agreement or detrimental
to the interests of the Pledgees.
5. Event
of Default; Power of Attorney.
(a) Upon
the
occurrence and during the continuance of any Event of Default, the Pledgees
shall have the right to: (i) exercise all voting and corporate rights of, and
all rights of conversion, exchange, subscription or any other rights, privileges
or options pertaining to, any Pledged Stock as if the Pledgees were the absolute
owners thereof, including (without limitation) the right to exchange, at their
discretion, any and all of the Pledged Stock upon the merger, consolidation,
reorganization, recapitalization or other readjustment of OMGH or upon the
exercise by the Pledgor or the Pledgees of any right, privilege or option
pertaining to any of the Pledged Stock and, in connection therewith, to deposit
and deliver any and all of the Pledged Stock with any committee, depository,
transfer agent, registrar or other designated agency on such terms and
conditions as the Pledgees may determine, all without liability except to
account for property actually received by them; (ii) apply any funds or other
property received in respect of the Pledged Stock to the Obligations, and
receive in their own name any and all further distributions which may be paid
in
respect of the Pledged Stock, all of which shall, upon receipt by the Pledgees,
be applied to the Obligations; (iii) transfer all or any portion of the Pledged
Stock (as determined by the Pledgees in their discretion) on the books of OMGH
to and in the name of the Pledgees or such other person or persons as the
Pledgees may designate; (iv) affect any sale, transfer or disposition of all
or
any portion of the Pledged Stock and in furtherance thereof, take possession
of
and endorse any and all checks, drafts, bills of exchange, money orders or
other
documents and instruments received on account of the Pledged Stock; (v) collect,
xxx for and give acquittance for any money due on account of any of the
foregoing; and (vi) take any and all other action contemplated by this
Agreement, or as otherwise permitted by law, or as the Pledgees may reasonably
deem necessary or appropriate, in order to accomplish the purposes of this
Agreement.
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(b) In
furtherance of the foregoing powers of the Pledgees, the Pledgor hereby
authorizes and appoints each Pledgee, with full powers of substitution, as
the
true and lawful attorney-in-fact of the Pledgor, in its name, place and stead,
to take any and all such action as each Pledgee, in his or its sole discretion,
may deem necessary or appropriate in furtherance of the exercise of the
aforesaid powers. Such power of attorney shall be coupled with an interest,
and
shall be irrevocable until the Satisfaction Date. Without limitation of the
foregoing, such power of attorney shall not in any manner be affected or
impaired by reason of any act of the Pledgor or by operation of law. Nothing
herein contained, however, shall be deemed to require or impose any duty upon
a
Pledgee to exercise any of the rights or powers granted herein.
(c) The
foregoing rights and powers granted to the Pledgees, and the foregoing power
of
attorney, shall be fully binding upon any person who may acquire any beneficial
interest in any of the Pledged Stock or any other property held or received
by
the Pledgees hereunder.
6. Foreclosure;
Sale of Pledged Stock.
(a) Without
limitation of Paragraph 5 above, in the event that the Pledgees shall make
any
sale or other disposition of any or all of the Pledged Stock following an Event
of Default, the Pledgees may also:
(i) offer
and
sell all or any portion of the Pledged Stock publicly through a registered
broker-dealer, or by means of a private placement restricting the offer or
sale
to a limited number of prospective purchasers who meet such suitability
standards as the Pledgees and their counsel may deem appropriate, and who may
be
required to represent that they are purchasing the Pledged Stock for investment
and not with a view to distribution;
(ii) sell
any
or all of the Pledged Stock upon credit or for future delivery, without being
in
any way liable for failure of the purchaser to pay for the subject Pledged
Stock; and
(iii)
receive
and collect the net proceeds of any sale or other disposition of any Pledged
Stock, and apply same in such order and to such of the Obligations (including
the customary costs and expenses of the sale or disposition of the Pledged
Stock) as the Pledgees may, in their absolute discretion, deem
appropriate.
(b) Upon
any
sale of any of the Pledged Stock in accordance with this Agreement, the Pledgees
shall have the right to assign, transfer and deliver the subject Pledged Stock
to the purchaser(s) thereof, and each such purchaser shall be entitled to hold
such Pledged Stock absolutely free from any right or claim of the Pledgor and/or
any other person claiming any beneficial interest in the Pledged Stock,
including any equity of redemption (which right and all other such rights are
hereby waived by the Pledgor to the fullest extent permitted by
law).
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(c) Nothing
herein
contained shall be deemed to require the Pledgees to effect any sale or
disposition of any Pledged Stock at any time, or to consummate any proposed
public or private sale at the time and place at which same was initially called.
It is the intention of the parties hereto that the Pledgees shall, subject
to
any further conditions imposed by this Agreement, at all times following the
occurrence of an Event of Default, have the right to use or deal with the
Pledged Stock as if the Pledgees were the outright owners thereof, and to
exercise any and all rights and remedies, as a secured party in possession
of
collateral or otherwise, under any and all provisions of law.
(d) The
Pledgor and Pledgees agrees that upon release of the Pledged Stock after the
occurrence of an Event of Default, such Pledged Stock will not be subject to
the
terms of any standstill agreement or lock-up agreement.
(e) Following
the occurrence and during the existence of an Event of Default, the Pledgor
will
cooperate and provide such certificate, resolutions, representations, legal
opinions and all other matters necessary to facilitate a transfer or sale of
any
part of the Pledged Stock pursuant to Rule 144. Subject to holding period set
forth in Rule 144, the Pledgor is unaware of any impediment to the resale of
the
Pledged Stock in reliance on Rule 144 by the Pledgees upon an Event of Default.
The Pledgor will not take any action that would impede or limit the Pledgees’
ability to sell all the Pledged Stock upon an Event of Default, pursuant to
Rule
144. For so long as any Pledged Stock is subject to this Agreement, no Pledgor
will sell any security from Options Media Group Holdings, Inc. which such sale
would or could be aggregated with sales by the Pledgees of Pledged Stock
pursuant to Rule 144. The Pledgor represents that the Notes were issued in
bona fide
loan
transactions.
7. Covenants,
Representations and Warranties.
In
connection with the transactions contemplated by this Agreement, and knowing
that the Pledgees are and shall be relying hereon, the Pledgor hereby covenants,
represents and warrants that:
(a) the
Pledged Stock has been duly and validly issued, is fully paid and non-assessable
(and any Pledged Stock received in the future will be duly and validly issued,
fully paid and non-assessable) , and is and will be owned by the Pledgor free
and clear of any and all restrictions, pledges, liens, encumbrances or other
security interests of any kind, save and except for the pledge to the Pledgees
pursuant to this Agreement;
(b) there
are
and will be no options, warrants or other rights in respect of the Pledged
Stock
which are not pledged to the benefit of Pledgees hereunder, and the Pledgor
has
the absolute right to pledge the Pledged Stock hereunder without the necessity
of any consent of any person;
(c) neither
the execution or delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, nor the compliance with or performance of
this
Agreement by the Pledgor, conflicts with or will result in the breach or
violation of or a default under the terms, conditions or provisions of (i)
any
mortgage, security agreement, indenture, evidence of indebtedness, loan or
financing agreement, or other agreement or instrument to which the Pledgor
is a
party or by which the Pledgor is bound, or (ii) any provision of law, any order
of any court or administrative agency, or any rule or regulation applicable
to
the Pledgor;
(d) this
Agreement has been duly executed and delivered by the Pledgor, and constitutes
the legal, valid and binding obligation of the Pledgor, enforceable against
the
Pledgor in accordance with its terms;
(e) there
are
no actions, suits or proceedings pending or threatened against or affecting
the
Pledgor that involve or relate to the Pledged Stock;
4
(f) upon
execution of this Agreement by the Pledgor, the Pledgees shall have the sole
and
first priority lien and security interest in the Pledged Stock; and
(g) the
Pledgor is solvent on the date hereof.
8. UCC
Filings.
The
Pledgor hereby grants to Pledgees the right and authority to file UCC Financing
Statements at the Pledgor’s expense in Delaware and any other jurisdiction in
which the Pledgees acting in their sole discretion may require to memorialize
the security interest herein granted.
9. Return
of the Pledged Stock.
To the
extent that the Pledgees shall not previously have taken, acquired, sold,
transferred, disposed of or otherwise realized value on the Pledged Stock in
accordance with this Agreement, at the Satisfaction Date, any security interest
in the Pledged Stock shall automatically terminate, cease to exist and be
released, and the Pledgees shall forthwith return the Pledged Stock to and
in
the name of the Pledgor, and file, at the Pledgor’s expenses, releases of
Pledgees’ security interest in the Pledged Stock.
10.
Expenses
of the Pledgees.
All
expenses incurred by the Pledgees (including but not limited to reasonable
attorneys’ fees and costs) in connection with the enforcement of this Agreement
or any actual or attempted sale or other disposition of the Pledged Stock
hereunder shall be reimbursed to the Pledgees by the Pledgor on demand, or,
at
the Pledgees’ option, such expenses may be added to the Obligations and shall be
payable on demand.
11. Further
Assurances.
From
time to time hereafter, each party shall take any and all such further action,
and shall execute and deliver any and all such further documents and/or
instruments, as any other party may request in order to accomplish the purposes
of and fulfill the parties’ obligations under this Agreement, in order to enable
the Pledgees to exercise any of their rights hereunder, and/or in order to
secure more fully the Pledgees’ interest in the Pledged Stock.
12.
Miscellaneous.
(a) All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted
to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery
by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be: (i) if to the Pledgor to: interCLICK,
Inc., 000 Xxxx Xxxxxx Xxxxx, Xxxxx 000-000, Xxx Xxxx, Xxx Xxxx 00000, Fax:
(000)
000-0000, with an additional copy to: Xxxxxx and Xxxxx, LLP, 1221 Avenue of
the
Xxxxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, Esq., Fax: (000)
000-0000, and (ii) if to the Pledgees, to: Xxxxx
Xxxxx, 000 Xxxxx Xxxxxxx Xxx, Xxxxx 000 Xxxx Xxxxx Xxxxxxx 00000, Fax: (000)
000-0000, with an additional copy to: Grushko & Xxxxxxx, P.C., 000 Xxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx,
Esq., Fax: (000) 000-0000.
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(b) If
any
notice to the Pledgor of the sale or other disposition of the Pledged Stock
is
required by then applicable law, five (5) business days prior written notice
(which the Pledgor agrees is reasonable notice within the meaning of Section
9-504(3) of the Uniform Commercial Code) to the Pledgor of the time and place
of
any sale of the Pledged Stock which the Pledgor agrees may be by private sale.
The rights granted in this Section are in addition to any and all rights
available to the Pledgees under the Uniform Commercial Code.
(c) The
laws
of the State of New York including but not limited to Article 9 of the Uniform
Commercial Code as in effect from time to time, shall govern the construction
and enforcement of this Agreement and the rights and remedies of the parties
hereto. The parties hereby consent to the exclusive jurisdiction of all courts
sitting in the State and County of New York, in connection with any action
or
proceeding under or relating to this Agreement, and waive trial by jury in
any
such action or proceeding.
(d) This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns. The Pledgor shall not,
however, assign any of its or his rights or obligations hereunder without the
prior written consent of the Pledgees, and the Pledgees shall not assign their
rights hereunder without simultaneously assigning their obligations hereunder
to
the subject assignee. Except as otherwise referred to herein, this Agreement,
and the documents executed and delivered pursuant hereto, constitute the entire
agreement between the parties relating to the specific subject matter
hereof.
(e) Neither
any course of dealing between the Pledgor and the Pledgees nor any failure
to
exercise, or any delay in exercising, on the part of the Pledgees, any right,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege operate as a waiver
of any other exercise of such right, power or privilege or any other right,
power or privilege.
(f) The
Pledgees’ rights and remedies, whether hereunder or pursuant to any other
agreements or by law or in equity, shall be cumulative and may be exercised
singly or concurrently.
(g) No
change, amendment, modification, waiver, assignment of rights or obligations,
cancellation or discharge hereof, or of any part hereof, shall be valid unless
the Pledgees shall have consented thereto in writing.
(h) The
captions and paragraph headings in this Agreement are for convenience of
reference only, and shall not in any way define, limit or describe the
construction, terms or provisions of this Agreement.
(i) If
any
provision of this Agreement is held invalid or unenforceable, either in its
entirety or by virtue of its scope or application to given circumstances, such
provision shall thereupon be deemed modified only to the extent necessary to
render same valid, or not applicable to given circumstances, or excised from
this Agreement, as the situation may require, and this Agreement shall be
construed and enforced as if such provision had been included herein as so
modified in scope or application, or had not been included herein, as the case
may be.
(j) This
Agreement together with the Notes, are intended by the parties hereto as the
final expression of their agreement regarding the subject matter hereof and
as a
complete and exclusive statement of the terms and conditions of such Agreement.
6
IN
WITNESS WHEREOF,
the
parties hereto have executed this Stock Pledge Agreement on and as of the date
first set forth above.
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PLEDGOR:
|
|
|
By:
|
/s/
Xxxxxxx Xxxxxxx
|
|
Name:
Xxxxxxx Xxxxxxx
|
|
|
Title:
Chief Executive Officer
|
|
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PLEDGEES:
|
|
/s/
Xxxxx Xxxxx
|
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XXXXX
XXXXX
|
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By:
|
/s/
Xxxxx Xxxxx
|
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Title:
President
|
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7
SCHEDULE
A TO STOCK PLEDGE AGREEMENT
|
CERTIFICATE
NUMBER
|
HOLDER
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SHARES
[and Class of Shares]
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ISSUER
|
JURISDICTION
OF ORGANIZATION OF ISSUER
|
||||
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7,800,000
shares of common stock
|
Options
Media Group Holdings, Inc.
|
Nevada
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8
