PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated this 14th day of April 2005 between VSUS
Technologies, Incorporated (the "Pledgor"), Xxxxx & Xxxxxxx LLP, the Pledge
Agent (the "Pledge Agent") as agent for _________________________________(the
"Pledgee") and 1stAlerts, Inc. (the "Company").
WITNESSETH:
WHEREAS, the Company and Pledgee have entered into that certain Secured
Promissory Note, dated December 31, 2004, pursuant to which the Company issued
to Pledgee its Secured Promissory Note in the original aggregate principal
amount of $__________(the "Note");
WHEREAS, the Pledgor and the Company, are parties to that certain Agreement
and Plan of Merger dated as of April 11, 2005 (the "Merger Agreement"), whereby,
the Company merged with and into First Info Network, Inc. ("First Info"), a
wholly-owned subsidiary of the Pledgor, and the Pledgor acquired all of the
issued and outstanding shares of capital stock of the Pledgee, consisting of Two
Hundred (200) shares of common stock (the "Merger");
WHEREAS, in connection with the Merger, First Info, as the surviving
company pursuant to the Merger and successor to the Pledgee, has assumed
responsibility for the Obligations (as defined in Section 1 herein) due to the
Pledgee under the Note; and
WHEREAS, it is a condition precedent to the Merger that the Pledgor shall
have executed this Agreement and made the pledge in favor of the Pledgee of
shares of common stock of the Company in the amount set forth on Schedule A
hereof.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto agree as follows:
1. Pledge: As collateral security for the due and punctual payment and
performance by First Info of the Note executed by the Company in favor of the
Pledgee on December 31, 2004 (all said obligations and all amounts payable
hereunder hereinafter collectively called the "Obligations"), the Pledgor hereby
collaterally pledges, hypothecates, assigns and grants to the Pledgee a security
interest in its shares which are listed on Schedule A hereto (all of such
property hereinafter referred to as the "Pledged Collateral") and the following:
(i) the Pledged Collateral and the certificates representing the
Pledged Collateral and all cash, securities, dividends and other property at any
time and from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Collateral; and
(ii) all securities hereafter delivered to the Pledge Agent in
substitution for or in addition to any of the foregoing, and all certificates
and instruments representing or evidencing such securities and all cash,
securities, dividends and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all thereof.
2. Pledge Absolute. The Pledgor hereby agrees that this Pledge Agreement
shall be binding upon the Pledgor and that the pledge of the Pledged Collateral
hereunder shall be irrevocable and unconditional, irrespective of the validity,
legality or enforceability of the Note, or the Obligations, the absence of any
action to enforce the same, or any waiver or consent by the Pledgee with respect
to any provisions thereof.
3. Representatives and Warranties. (a) The Pledgor, respectively, hereby
represents and warrants as to it as follows:
(i) Authority. The Pledgor has full power, authority, capacity and
legal right to enter into this Pledge Agreement, to pledge the Pledged
Collateral pursuant hereto and to incur and perform the Obligations provided for
herein.
(ii) Binding Agreement. This Pledge Agreement constitutes the legal,
valid and binding obligation of the Pledgor, enforceable in accordance with its
terms.
(iii) No Conflicts; Governmental Approvals. There is no statute,
regulation, rule, order or judgment, and no provision of any mortgage,
indenture, contract or agreement binding upon the Pledgor or affecting the
Pledgor's property, which would prohibit, conflict with, or in any way prevent
the execution, delivery or performance of the terms of this Agreement and the
pledge of the Pledged Collateral pursuant hereto. The execution, delivery and
performance by the Pledgor of the terms of this Agreement and the pledge of the
Pledged Collateral pursuant hereto does not require any filing with, or the
consent or approval of, any governmental agency or regulatory authority.
(iv) Title to Pledged Collateral. When any item of Pledged Collateral
is pledged hereunder, the Pledgor will be the owner of such item of Pledged
Collateral free and clear of all liens, security interests, charges and
encumbrances of every kind and nature (other than those created hereunder); each
share of stock comprising such item of Pledged Collateral will be fully paid and
non-assessable; the Pledgor will have legal title to such Pledged Collateral and
the Pledgor will have good and lawful authority to pledge, assign and deliver
such item of Pledged Collateral in the manner hereby contemplated; and no
consent or approval of any governmental body or regulatory authority, or of any
securities exchange, will be necessary to the validity of the rights created
hereunder. All action has been taken by the Pledgor to create and perfect a
security interest in the Pledged Collateral, and the Pledgee has, or will have
upon delivery of the Pledged Collateral to the Pledge Agent, acquire a first and
prior perfected security interest therein.
4. Appointment of Agents; Registration of Nominee Name. The Pledgee shall
appoint a Pledge Agent, and upon execution of this Agreement, the Pledgor shall
deliver the Pledged Collateral to the Pledge Agent for the purpose of retaining
physical possession of the certificates representing or evidencing the Pledged
Collateral, which shall be held in the name of the Pledgor, endorsed or assigned
in blank or in favor of the Pledge Agent. The Pledgee may, from time to time
after there shall have occurred and during the continuation of any default in
respect of the Note, at the Pledgee's sole discretion and without notice to the
Pledgor, take any or all of the following actions: (a) transfer all or any part
of the Pledged Collateral into the name of the Pledgee or his nominee, with or
without disclosing that the Pledged Collateral is subject to the lien and
security interest hereunder; (b) take control of any proceeds of any of the
Pledged Collateral; and (c) exchange certificates or instruments representing or
evidencing Pledged Collateral for certificates or instruments of smaller or
larger denominations for any purpose not inconsistent with his rights under this
Agreement.
5. Voting Rights; Dividends; Replacement of Collateral, Etc. (a) So long as
the Pledgee has not satisfied all or any portion of the Note through the sale or
transfer of the Pledged Collateral and/or there shall not have occurred and be a
continuing default in connection with the Note, the Pledgor shall be entitled to
exercise any and all voting rights and powers relating or pertaining to the
Pledged Collateral or any part thereof for any purpose not inconsistent with the
terms of this Agreement.
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(b) So long as there shall not have occurred and be a continuing
default in connection with the Note, the Pledgor shall receive and be entitled
to retain any and all cash dividends, if any, paid on the Pledged Collateral.
Any and all stock and/or liquidating dividends, distributions in property,
redemptions or other distributions made on or in respect of the Pledged
Collateral, whether resulting from a subdivision, combination or
reclassification of the outstanding capital stock of any issuer or received in
exchange for Pledged Collateral or any part thereof, or as a result of any
merger, consolidation, acquisition or other exchange of assets to which any
issuer may be a party or otherwise, and any and all cash and other property
received in payment of the principal of or in redemption of or in exchange for
any Pledged Collateral (either at maturity, upon acceleration or call for
redemption, or otherwise), shall become part of the Pledged Collateral and, if
received by the Pledgor, shall be held in trust for the benefit of the Pledgee
and shall forthwith be delivered to the Pledge Agent (accompanied by proper
instruments of assignment and/or stock powers executed by the Pledgor in
accordance with the Pledgee's instructions) to be held subject to the terms of
this Agreement.
(c) Subject to Section 5(d) hereof, upon the occurrence of a default
in connection with the Note and so long as such default shall continue, at the
option of the Pledgee, (i) all rights of the Pledgor to exercise the voting
rights and powers which the Pledgor is entitled to exercise pursuant to Section
5(a) hereof shall cease, and all such rights shall thereupon become vested in
the Pledgee, and the Pledgee shall have the sole and exclusive right and
authority to exercise such voting and/or consensual rights and powers; and (ii)
the Pledgee shall receive and be entitled to retain any and all cash dividends,
if any, paid on the Pledged Collateral. Any and all money and other property
paid over to or received by the Pledge Agent pursuant to the provisions of
Section 5(b) above shall be retained by the Pledge Agent as part of the Pledged
Collateral and shall be applied in accordance with the provisions hereof.
6. Remedies upon Default. (a) During the continuation of a Default in
connection with the Note then, in addition to having all the rights and remedies
of a secured party under the Uniform Commercial Code in effect in the State of
New York, the Pledge Agent may, without being required to give any notice to the
Pledgor, apply the cash (if any) then held by it hereunder pursuant hereto to
the payment in full of the Obligations and shall, upon written instructions from
the Pledgee, assign, deliver and transfer to the Pledgee, the Pledged Collateral
and any cash held by the Pledge Agent.
(b) Without limiting the foregoing, in the event that the Pledgee
elects to sell the Pledged Collateral (such term including, for purposes of this
Section 6 the Pledged Collateral and all other shares of stock or securities at
any time forming part of the Pledged Collateral), the Pledgee shall have the
power and right in connection with any such sale, exercisable at his option and
in his absolute discretion, to sell, assign, and deliver the whole or any part
of the Pledged Collateral or any additions thereto at a private or public sale
for cash, on credit or for future delivery and at such price as the Pledgee
deems to be satisfactory. Notice of any public sale shall be sufficient if it
describes the Pledged Collateral to be sold in general terms, and is published
at least once in any newspaper then being circulated in the City of New York,
New York not less than seven (7) days prior to the date of sale. All
requirements of reasonable notice under this Section 6 shall be met if such
notice is mailed, postage prepaid at least ten (10) days before the time of such
sale or disposition, to the Pledgor at its address hereinafter set forth or such
other address as the Pledgor may have, in writing, provided to the Pledgee. The
Pledgee may, if he deems it reasonable, postpone or adjourn any sale of the
Pledged Collateral from time to time by an announcement at the time and place of
the sale to be so postponed or adjourned without being required to give a new
notice of sale.
(c) Because federal and state securities laws may restrict the methods
of disposition
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of the Pledged Collateral which are readily available to the Pledgee, and
specifically because a public sale thereof may be impossible or impracticable by
reason of certain restrictions under the Securities Act of 1933, as amended, or
under applicable Blue Sky or other state securities laws as now or hereafter in
effect, the Pledgor agrees that the Pledgee may from time to time attempt to
sell the Pledged Collateral by means of a private placement restricting the
offering or sale to a limited number of prospective purchasers who meet
suitability standards the Pledgee deems appropriate and who agree that they are
purchasing for their own accounts for investment and not with a view to
distribution, and the Pledgee's acceptance of the highest offer obtained
therefrom shall be deemed to be a commercially reasonable disposition of the
Pledged Collateral. The Pledgee or his assigns may purchase all or any part of
the Pledged Collateral and any purchaser thereof shall thereafter hold the same
absolutely free from any right or claim of any kind. To the fullest extent
permitted by law, the Pledgee shall not be obligated to make any sale pursuant
to notice (other than notice to the Pledgor in the manner described in the
penultimate sentence of Section 6(b) hereof) and may, without notice or
publication, adjourn any public or private sale by an adjournment at the time
and place fixed for the sale, and such sale may be held at any time or place to
which the same may be adjourned. If any of the Pledged Collateral are sold by
the Pledgee upon credit or for future delivery, the Pledgee shall not be liable
for the failure of the purchaser to pay for the same and, in such event, the
Pledgee may resell such Pledged Collateral and the Pledgor shall continue to be
liable to the Pledgee for the full amount of the Obligations to the extent the
Pledgee does not receive full and final payment in cash therefor.
7. Pledgee's Appointed Attorney-in-Fact. During the continuation of a
Default, the Pledgor hereby appoints the Pledgee as the Pledgor's
attorney-in-fact for the purpose of carrying out the provisions of this
Agreement and taking any action and executing any instrument that 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, the Pledgee shall have the right and power to receive, endorse
and collect all checks and other orders for the payment or other distribution
payable or distribution in respect of the Pledged Collateral or any part thereof
and to give full discharge for the same.
8. Limitation on the Pledge Agent's and Pledgee's Duty with Respect to
Collateral. The Pledge Agent and the Pledgee shall have no duty with respect to
the Pledged Collateral in their possession or control, or with respect to any
income thereon or to the preservation of rights pertaining thereto, other than
the duty of reasonable care in the custody and preservation of the Pledged
Collateral in their possession or control. The Pledge Agent and the Pledgee
shall be deemed to have exercised reasonable care in the custody and
preservation of the Pledged Collateral in their possession or control if the
Pledged Collateral is accorded treatment substantially equivalent to that which
the Pledge Agent and Pledgee, in their individual capacities, accords their own
property consisting of securities.
9. Duties and Obligations of the Pledge Agent. (a) The parties hereto agree
that the duties and obligations of the Pledge Agent are only such as are herein
specifically provided and no other. The Pledge Agent's duties are as a
depositary only, and the Pledge Agent shall incur no liability whatsoever,
except as a direct result of the Pledge Agent's willful misconduct or gross
negligence.
(b) The Pledge Agent may consult with counsel of the Pledge Agent's
choice, and shall not be liable for any action taken, suffered or omitted by the
Pledge Agent in accordance with the advice of such counsel.
(c) The Pledge Agent shall not be bound in any way by the terms of any
other agreement to which the Pledgor, Pledgee or the Company are parties,
whether or not the Pledge Agent has
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knowledge thereof, and the Pledge Agent shall not in any way be required to
determine whether or not any other agreement has been complied with by the
Pledgor, Pledgee or the Company, or any other party thereto. The Pledge Agent
shall not be bound by any modification, amendment, termination, cancellation,
rescission or supersession of this Agreement unless the same shall be in writing
and signed jointly by each of the Pledgor, Pledgee and the Company, and agreed
to in writing by the Pledge Agent.
(d) If the Pledge Agent shall be uncertain as to the Pledge Agent's
duties or rights hereunder or shall receive instructions, claims or demands
which, in the Pledge Agent's opinion, are in conflict with any of the provisions
of this Agreement, the Pledge Agent shall be entitled to refrain from taking any
action, other than to keep safely all Pledged Collateral or to take certain
action, until the Pledge Agent shall jointly be directed otherwise in writing by
the Pledgor, Pledgee and the Company or by a final judgment of a court of
competent jurisdiction.
(e) The Pledge Agent shall be fully protected in relying upon any
written notice, demand, certificate or document which the Pledge Agent, in good
faith, believes to be genuine. The Pledge Agent shall not be responsible for the
sufficiency or accuracy of the form, execution, validity or genuineness of
documents or securities now or hereafter deposited hereunder, or of any
endorsement thereon, or for any lack of endorsement thereon, or for any
description therein; nor shall the Pledge Agent be responsible or liable in any
respect on account of the identity, authority or rights of the persons executing
or delivering or purporting to execute or deliver any such document, security or
endorsement.
(f) The Pledge Agent shall not be required to institute legal
proceedings of any kind and shall not be required to defend any legal
proceedings which may be instituted against the Pledge Agent or in respect of
the Pledged Collateral.
(g) If the Pledge Agent at any time, in the Pledge Agent's sole
discretion, deems it necessary or advisable to relinquish custody of the Pledged
Collateral, it may do so by delivering the same to any other Pledge Agent
selected by the Pledgee and, if no such Pledge Agent shall be selected within
three days of the Pledge Agent's notification to the Pledgee, the Pledgor and
the Company of the Pledge Agent's desire to so relinquish custody of the Pledged
Collateral, then the Pledge Agent may do so by delivering the Pledged Collateral
to the clerk or other proper officer of a court of competent jurisdiction as may
be permitted by law. The fee of any court officer shall be borne by the Pledgor.
Upon such delivery, the Pledge Agent shall be discharged from any and all
responsibility or liability with respect to the Pledged Collateral and this
Agreement and the Pledgor, Pledgee and the Company shall promptly pay to the
Pledge Agent all monies which may be owed the Pledge Agent for the Pledge
Agent's services hereunder, including, but not limited to, reimbursement of the
Pledge Agent's out-of-pocket expenses.
(h) This Agreement shall not create any fiduciary duty on the Pledge
Agent's part to the Pledgor, the Pledgee or the Company.
(i) Upon the performance of this Agreement, the Pledge Agent shall be
deemed released and discharged of any further obligations hereunder.
10. Fees, Expenses and Commissions. The Pledge Agent shall be paid a fee of
$_____, plus all reasonable out-of-pocket expenses paid or incurred by the
Pledge Agent in the administration of the Pledge Agent's duties hereunder,
including, but not limited to, postage, all outside counsel to the Pledge Agent
and advisors' and agents' fees and all taxes or other governmental charges, if
any.
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11. No Waiver. No failure on the part of the Pledgee to exercise, and not
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 the Pledgee preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and not exclusive of any other remedies provided by law.
12. Termination. This Agreement shall terminate when there is no longer any
amount outstanding on the Note at which time the Pledge Agent shall reassign and
redeliver to the Pledgor, without recourse or warranty (other than a warranty
that the Pledge Agent, has not assigned or transferred the Pledged Collateral so
reassigned and redelivered or its respective security interests therein), and at
the sole cost and expense of the Pledgor, against receipt, such of the Pledged
Collateral (if any) as shall not have been sold or transferred to satisfy all or
any portion of the Note pursuant to the terms hereof and is then still held by
it hereunder, together with appropriate instruments for reassignment and
release.
13. Addresses for Notices, Etc. Any notice, election, demand or other
communication hereunder shall be in a signed writing and shall be deemed given
or made when actually received by personal delivery or by facsimile transmission
followed immediately by First Class mail, or two business days following the
date when mailed by certified mail, postage prepaid, return receipt requested,
to the appropriate party or parties, at the following addresses:
If to the Pledge Agent to:
Xxxxx & Xxxxxxx LLP
00 X.00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
If to the Pledgor:
VSUS Technologies, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxx
Facsimile:
------------------
With copy to:
Xxxxx & Schloss LLP
00 X.00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Pledgee:
___________________
___________________
___________________
___________________
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or, in each case, to such other address as the parties may hereinafter
designate by like notice.
14. Indemnification. (a) The Company hereby indemnifies and holds free and
harmless the Pledge Agent from any and all losses, expenses, liabilities and
damages (including but not limited to reasonable attorney's fees, and amount
paid in settlement) resulting from claims asserted by the Pledgee with respect
to the performance of any of the provisions of this Agreement.
(b) The Company hereby indemnifies and holds the Pledge Agent harmless
from and against any and all losses, damages, taxes, liabilities and expenses
that may be incurred by the Pledge Agent, arising out of or in connection with
the Pledge Agent's acceptance of appointment as the Pledge Agent hereunder
and/or the performance of the Pledge Agent's duties pursuant to this Agreement,
including, but not limited to, all legal costs and expenses of the Pledge Agent
incurred defending itself against any claim or liability in connection with the
Pledge Agent's performance hereunder, provided that the Pledge Agent shall not
be entitled to any indemnity for any losses, damages, taxes, liabilities or
expenses that directly result from the Pledge Agent's willful misconduct or
gross negligence.
(c) The Company agrees to and hereby indemnifies the Pledgee from and
against any and all claims, damages, losses, liabilities and expenses arising
out of, or in connection with, or resulting from, this Agreement (including,
without limitation, enforcement of this Agreement).
15. Further Assurances. The Pledgor agrees to do such further reasonable
acts and to execute and deliver such additional conveyances, assignments,
agreements and instruments, as the Pledge Agent and Pledgee may at any time
reasonably request in connection with the administration or enforcement of this
Agreement (including, without limitation, to aid the Pledge Agent or Pledgee in
the sale of all or any part of the Pledged Collateral) or related to the Pledged
Collateral or any part thereof or in order better to assure and confirm unto the
Pledge Agent or Pledgee their rights, powers and remedies hereunder. The Pledgor
hereby consents and agrees that the Pledgor or any registrar or transfer agent
for any of the Pledged Collateral shall be entitled to accept the provisions
hereof as conclusive evidence of the right of the Pledge Agent or Pledgee to
effect any transfer pursuant to the terms hereof, notwithstanding any other
notice or direction to the contrary heretofore or hereafter given by the Pledgor
or any other person or to any registrar or transfer agent.
16. Binding Agreement; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective executors,
administrators, successors and assigns, except that the Pledgor shall not assign
this Agreement or any interest herein, or in the Pledged Collateral, or any part
thereof, or otherwise pledge, encumber or grant any option with respect to the
Pledged Collateral, or any part thereof, or any cash or property held by the
Pledge Agent or Pledgee as Pledged Collateral under this Agreement, without the
prior written consent of the Pledgee.
17. Governing Law; Amendments. This Agreement shall in all respects be
construed in accordance with and governed by the laws of the State of New York,
without giving effect to its conflict of laws rules. No provision of this
Agreement may be amended, waived or modified, nor may any of the Pledged
Collateral be released, unless specifically provided for herein, except in a
writing signed by the Pledgee.
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18. Expenses. The Pledgor hereby agrees to pay on demand all costs and
expenses (including, without limitation, all reasonable fees and disbursements
of counsel) incurred by the Pledge Agent or Pledgee in connection with the
enforcement of the Pledgee's rights under this Agreement and the safekeeping of
any realization upon the Pledged Collateral.
19. Submission to Jurisdiction. (a) The Pledgor hereby irrevocably submits
to the nonexclusive jurisdiction of any federal or state court sitting in the
State of New York in any action or proceeding arising out of or relating to this
Agreement, and the Pledgor hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in any such court. The
Pledgor irrevocably consents to the service of any and all process in any such
action by proceeding by the mailing via registered or certified mail of copies
of such process to the Pledgor at its address specified herein.
(b) The Pledgor hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement brought in any federal or state
court sitting in the State of New York and hereby further irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has
been brought in any inconvenient forum.
(c) Notwithstanding the foregoing, the Pledge Agent or Pledgee may xxx
the Pledgor in any jurisdiction where the Pledgor or any of its assets may be
found and may serve legal process upon the Pledgor in any other manner permitted
by law.
20. Headings. Section headings used herein are for convenience only and
shall not affect the construction of this Agreement.
21. Execution of Counterparts. This Agreement may be executed in any number
of copies and by different parties on separate counterparts, all of which when
taken together shall constitute but one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
PLEDGOR:
VSUS TECHNOLOGIES, INC.
By:
-------------------------------
Name:
Title:
PLEDGEE:
PDB IRREVOCABLE TRUST
By:
-------------------------------
Name:
Title:
PLEDGE AGENT:
-----------------------------------
COMPANY:
1STALERTS, INC.
By:
-------------------------------
Name:
Title:
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SCHEDULE A
Company Name Type of Security No. of Shares Certificate No.
-----------------------------------------------------------------------------
First Info Network, Inc. Common Stock 200
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