PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT, dated as of April 1, 1998 (this "Pledge
Agreement"), is made by Xxxxxxx X. Xxxxxxx (the "Pledgor"), and WorldPort
Communications, Inc., an Delaware corporation ("Company").
W I T N E S S E T H:
WHEREAS, pursuant to an Employment Agreement between Pledgor and the
Company, as amended (the "Employment Agreement"), Pledgor has purchased 125,000
shares (the "Preferred Shares") of the Series B Convertible Preferred Stock (the
"Series B Preferred Stock") at a purchase price of $5.36 per share; and
WHEREAS, pursuant to the Employment Agreement, the Company has
extended deferred payment terms to Pledgor in connection with his purchase of
the Preferred Shares, which deferred payment terms are evidenced by that note
(the "Note") in the principal amount of Five Hundred Thirty-Two Thousand One
Hundred Dollars ($532,100) dated the date hereof (the "Note").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Pledgor agrees with the Company
that:
SECTION 1 Pledge. To secure the due and punctual payment and
performance of the Liabilities (hereinafter defined), the Pledgor hereby pledges
and grants to the Company a continuing security interest in the following:
(a) the Preferred Shares acquired by Pledgor (herein called the
"Pledged Securities"), the certificates and any other instruments
representing or evidencing the Pledged Securities, all rights to receive
such certificates or to receive any other evidence of ownership of the
Pledged Securities, and all cash, securities, interest, dividends, rights
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 Securities;
(b) all other property hereafter delivered to the Company in
substitution for or in addition to any of the foregoing, all certificates
and instruments representing or evidencing such other property and all
cash, securities, interest, dividends, rights 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, all claims under any
thereof, and all other rights now existing or hereafter arising or acquired
under and in connection with any thereof; and
(c) all proceeds of all of the foregoing.
All such Pledged Securities, certificates, contracts, instruments, cash,
securities, interest, dividends, rights and other property is herein
collectively called the "Collateral."
TO HAVE AND TO HOLD the Collateral, together with all rights, title, interests,
privileges and preferences appertaining or incidental thereto, unto the Company,
its successors and assigns, forever, subject, however, to the terms, covenants
and conditions hereafter set forth.
The term "Liabilities," as used herein, shall mean all obligations and
liabilities of the Pledgor to the Company under the Note.
SECTION 2 Warranties and Covenants. So long as any of the
Liabilities remain outstanding, the Pledgor will, unless the Company shall
otherwise consent in writing:
(a) at his expense, promptly deliver to the Company any and all
certificates evidencing the Pledged Securities and, from time to time
upon request of the Company, such stock powers and other documents,
satisfactory in form and substance to the Company, with respect to the
Collateral as the Company may reasonably request to preserve and
protect, and to enable the Company to enforce, its rights and remedies
hereunder;
(b) not sell, assign, exchange or otherwise transfer any of his
right to any of the Collateral; or
(c) not create or suffer to exist any lien, security interest or
other charge or encumbrance against, in or with respect to any of the
Collateral except for the pledge hereunder and the security interest
created hereby.
SECTION 3 Further Assurances. The Pledgor agrees that it will, at
its cost and expense, do such further acts and things, and execute and deliver
to the Company such additional conveyances, assignments, Uniform Commercial Code
financing statements, agreements, instruments, and notices as the Company may
request in order to carry out the pledge of the Collateral or better to assure
and confirm unto the Pledgor its rights, powers and remedies hereunder.
SECTION 4 Default.
(a) The occurrence of either of the following shall constitute a
"Default" hereunder: (i) nonpayment, when due, of any amount payable
on the Note; or (ii) the failure by the Pledgor to perform any
covenant or agreement contained herein.
(b) Upon the occurrence of a Default, the Company may exercise
from time to time any rights and remedies available to it under the
Uniform Commercial Code as in effect from time to time in Delaware,
including, but not limited to, the sale, assignment, or other disposal
of the Pledged Securities in exchange for cash or credit. Pledgor
acknowledges the commercial reasonableness of a private sale of the
Collateral given the securities law restrictions upon public notice,
solicitation and distribution.
SECTION 5 Termination. Upon payment in full of any and all
Liabilities, this Pledge Agreement shall terminate, the pledge of the Collateral
shall become null and void, and all Collateral in possession of the Company
shall be returned to and become the sole and exclusive property of Pledgor.
SECTION 6 Notices. All communications and notices hereunder shall be
in writing and, if mailed, shall be deemed to be given when sent by registered
or certified mail, postage prepaid, and addressed to the Company at its
principal place of business and to Pledgor at his last address in the Company's
records.
SECTION 7 Binding Agreement; Assignment. 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 assigns,
except that the Pledgor shall not be permitted to assign this Agreement or any
interest herein or in the Collateral, or any part thereof, or otherwise grant
any option with respect to the Collateral, or any part thereof.
SECTION 8 Miscellaneous Provisions. Neither this Agreement nor any
provision hereof may be amended, modified, waived, discharged or terminated nor
may any of the Collateral be released or the pledge or the security interest
created hereby extended, except by an instrument in writing duly signed by or on
behalf of the Company hereunder.
SECTION 9 Governing Law; Interpretation. This Agreement shall be
governed by the internal laws of the State of Delaware. Wherever possible each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed as of the date first above written.
Xxxxxxx X. Xxxxxxx
WORLDPORT COMMUNICATIONS, INC.
By
Name:
Title:
