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EXHIBIT 1
STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT, dated as of May 9, 2001 (this
"Agreement"), among Tech Capital Group Limited (the "Pledgor"), XX0xxx.xxx, Inc.
(the "Company"), United States Trust Company of New York, as agent for Global
One Communications Pty, Ltd. (the "Agent"), and Global One Communications Pty,
Ltd. (the "Secured Party").
WHEREAS, the Secured Party has entered into certain service
order contracts (collectively, the "Service Contracts") with Global Freeway Pty
Ltd ("Global Freeway") for the provision by the Secured Party of certain
telecommunications and related services to Global Freeway;
WHEREAS, in connection with the Service Contracts, the Company
and the Secured Party have entered into that certain Letter of Guarantee, dated
August 29, 2000 (the "Guarantee");
WHEREAS, in connection with its obligations under the
Guarantee, the Company has agreed to make payments to the Secured Party in
accordance with the payment schedule (the "Payment Schedule") attached hereto as
Schedule II;
WHEREAS, the Pledgor is the owner of the shares (the "Pledged
Shares") of stock described in Schedule I hereto and issued by the Company;
WHEREAS, as security for the Company's payment obligations
under the Guarantee, the Pledgor desires to make the pledge contemplated by this
Agreement; and
WHEREAS, the Pledgor will derive substantial indirect benefit
from providing the pledge contemplated hereby.
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements set forth herein, the parties hereto agree as follows:
SECTION 1. Pledge. The Pledgor hereby pledges to the Agent for
the benefit of the Secured Party, and grants to the Agent for the benefit of the
Secured Party a security interest in, the following (the "Pledged Collateral"):
(i) the Pledged Shares and the certificates representing the
Pledged Shares, and all dividends, cash, instruments and other property
from time to time received,
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receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Shares; and
(ii) all proceeds of any and all of the foregoing Pledged
Collateral (including, without limitation, proceeds that constitute
property of the types described above).
SECTION 2. Security for Obligations. This Agreement secures
the payment of all obligations of the Company now or hereafter existing under
the Guarantee (the "Obligations"), and all obligations of the Pledgor and the
Company now or hereafter existing under this Agreement (all such obligations of
the Company and the Pledgor being the "Secured Obligations"). Without limiting
the generality of the foregoing, this Agreement secures the payment of all
amounts which constitute part of the Obligations and would be owed by the
Company to the Secured Party under the Guarantee but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company.
SECTION 3. Delivery of Pledged Collateral. (a) Upon execution
of this Agreement, all certificates or instruments representing or evidencing
the Pledged Collateral shall be delivered to and held by the Agent pursuant
hereto and shall be in suitable form for transfer by delivery (subject to the
receipt of all documents required pursuant to Section 12(d) hereof), or shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to the Secured Party.
(b) Upon execution of this Agreement, the Company shall cause
to be delivered a legal opinion satisfactory in form and substance to
the Secured Party as to the perfection of the security interest granted
hereunder.
SECTION 4. Representations and Warranties. The Pledgor
represents and warrants as follows:
(a) The Pledged Shares have been duly authorized and validly
issued and are fully paid and non-assessable.
(b) The Pledgor is the legal and beneficial owner of the
Pledged Collateral free and clear of any lien, security interest,
option or other charge or encumbrance except for the security interest
created by this Agreement and except that the Pledged Collateral may be
subject to restrictions on transfer pursuant to the Securities Act (as
hereinafter defined) and the rules and regulations of the Securities
and Exchange Commission.
(c) The pledge of the Pledged Shares pursuant to this
Agreement creates a valid and perfected first priority security
interest in the Pledged Collateral, securing the payment of the Secured
Obligations.
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(d) No consent of any other person or entity and no
authorization, approval, or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required (i) for
the pledge by the Pledgor of the Pledged Collateral pursuant to this
Agreement or for the execution, delivery or performance of this
Agreement by the Pledgor, (ii) for the perfection or maintenance of the
security interest created hereby (including the first priority nature
of such security interest) or (iii) for the exercise by the Agent of
the voting or other rights provided for in this Agreement or the
remedies in respect of the Pledged Collateral pursuant to this
Agreement (except as may be required in connection with any disposition
of any portion of the Pledged Collateral by laws affecting the offering
and sale of securities generally).
(e) The Pledged Shares constitute the percentage of the issued
and outstanding shares of stock of the Company indicated on Schedule I.
(f) There are no conditions precedent to the effectiveness of
this Agreement that have not been satisfied or waived.
(g) The Pledgor has, independently and without reliance upon
the Agent or the Secured Party and based on such documents and
information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement.
SECTION 5. Further Assurances. The Pledgor agrees that at any
time and from time to time, at the expense of the Pledgor, the Pledgor will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that the Agent or the
Secured Party may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable the
Agent to exercise and enforce its rights and remedies hereunder with respect to
any Pledged Collateral.
SECTION 6. Voting Rights; Dividends; Etc. (a) So long as no
Event of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise or refrain from
exercising any and all voting and other consensual rights pertaining to
the Pledged Collateral or any part thereof for any purpose not
inconsistent with the terms of this Agreement; provided, however, that
the Pledgor shall not exercise or refrain from exercising any such
right if, in the Secured Party's judgment, such action would have a
material adverse effect on the value of the Pledged Collateral or any
part thereof, and, provided, further, that the Pledgor shall give the
Agent and the Secured Party at least five days' written notice of the
manner in which it intends to exercise or the reasons for refraining
from exercising, any such right.
(ii) The Pledgor shall be entitled to receive and retain any
and all dividends paid in respect of the Pledged Collateral, provided,
however, that any and all
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(A) dividends paid or payable other than in cash in
respect of, and instruments and other property received,
receivable or otherwise distributed in respect of, or in
exchange for, any Pledged Collateral,
(B) dividends and other distributions paid or payable
in cash in respect of any Pledged Collateral in connection
with a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or
paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in
redemption of, or in exchange for, any Pledged Collateral,
shall be forthwith delivered to the Agent to hold as Pledged
Collateral and shall, if received by the Pledgor, be received in trust
for the benefit of the Agent, be segregated from the other property or
funds of the Pledgor, and be forthwith delivered to the Agent as
Pledged Collateral in the same form as so received (with any necessary
endorsement or assignment).
(iii) The Agent shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to exercise the voting and other rights which it
is entitled to exercise pursuant to paragraph (i) above and to receive
the dividends which it is authorized to receive and retain pursuant to
paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default:
(i) All rights of the Pledgor (x) to exercise or refrain from
exercising the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to Section 6(a)(i) shall,
upon notice to the Pledgor by the Agent (pursuant to the instructions
of the Secured Party), cease and (y) to receive the dividends which it
would otherwise be authorized to receive and retain pursuant to Section
6(a) (ii) shall automatically cease, and all such rights shall
thereupon become vested in the Agent who shall thereupon have the sole
right to exercise or refrain from exercising such voting and other
consensual rights and to receive and hold as Pledged Collateral such
dividends.
(ii) All dividends which are received by the Pledgor contrary
to the provisions of paragraph (i) of this Section 6(b) shall be
received in trust for the benefit of the Agent, shall be segregated
from other funds of the Pledgor and shall be forthwith paid over to the
Agent as Pledged Collateral in the same form as so received (with any
necessary endorsement or assignment).
(c) For purposes of this Agreement, the term "Event of Default" shall
mean the failure to pay when due any of the amounts set forth on the Payment
Schedule attached hereto as Schedule II. The Secured Party shall notify the
Agent of the occurrence of an Event of Default hereunder.
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SECTION 7. Transfers and Other Liens; Additional Shares. The
Pledgor agrees that it will not (i) sell, assign (by operation of law or
otherwise) or otherwise dispose of, or grant any option with respect to, any of
the Pledged Collateral, or (ii) create or permit to exist any lien, security
interest, option or other charge or encumbrance upon or with respect to any of
the Pledged Collateral, except for the security interest under this Agreement.
SECTION 8. Agent Appointed Attorney-in-Fact. The Pledgor
hereby appoints the Agent the Pledgor's attorney-in-fact, with full authority in
the place and stead of the Pledgor and in the name of the Pledgor or otherwise,
from time to time in the Agent's discretion to take any action and to execute
any instrument which the Agent may deem necessary or advisable to accomplish the
purposes of this Agreement (subject to the rights of the Pledgor under Section
6), including, without limitation, to receive, indorse and collect all
instruments made payable to the Pledgor representing any dividend or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same.
SECTION 9. Agent May Perform. If the Pledgor fails to perform
any agreement contained herein, the Agent may itself perform, or cause
performance of, such agreement and the expenses of the Agent incurred in
connection therewith shall be payable by the Pledgor pursuant to Section 13.
SECTION 10. The Agent Duties. The powers conferred on the
Agent hereunder are solely to protect its interest in the Pledged Collateral and
shall not impose any duty upon it to exercise any such powers. Except for the
safe custody of any Pledged Collateral in its possession and the accounting for
moneys actually received by it hereunder, the Agent shall have no duty as to any
Pledged Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Pledged Collateral, whether or not the Agent or the Secured Party has or is
deemed to have knowledge of such matters, or as to the taking of any necessary
steps to preserve rights against any parties or any other rights pertaining to
any Pledged Collateral. The Agent shall be deemed to have exercised reasonable
care in the custody and preservation of any Pledged Collateral in its possession
if such Pledged Collateral is accorded treatment substantially equal to that
which the Agent accords its own property. In the absence of any direction from
the Secured Party, the Agent shall not be required to exercise any voting rights
with respect to the Pledged Collateral.
SECTION 11. Remedies upon Default. If any Event of Default
shall have occurred and be continuing:
(a) The Agent shall have the right, without notice to the
Pledgor, to transfer to or register in the name of the Agent or any of
its nominees, any or all of the Pledged Collateral. In addition, the
Agent shall have the right to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or
instruments of smaller or larger denominations.
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(b) The Agent may exercise in respect of the Pledged
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a
secured party on default under the Uniform Commercial Code in effect in
the State of New York at that time (the "Code") (whether or not the
Code applies to the affected Pledged Collateral), and may also, without
notice except as specified below, sell the Pledged Collateral or any
part thereof in one or more parcels at public or private sale, at any
exchange, broker's board or at any of the Agent's offices or elsewhere,
for cash, on credit or for future delivery, and upon such other terms
as the Agent (acting upon the instructions of the Secured Party) may
deem commercially reasonable. The Pledgor agrees that, to the extent
notice of sale shall be required by law, at least ten days' notice to
the Pledgor of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable
notification. The Agent shall not be obligated to make any sale of
Pledged Collateral regardless of notice of sale having been given. The
Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was
so adjourned.
(c) Any cash held by the Agent as Pledged Collateral and all
cash proceeds received by the Agent in respect of any sale of,
collection from, or other realization upon all or any part of the
Pledged Collateral may be held by the Agent as collateral for, and/or
then or at any time thereafter be applied (after payment of any amounts
payable to the Agent hereunder) in whole or in part against all or any
part of the Obligations in such order as the Secured Party shall
determine. Any surplus of such cash or cash proceeds held by the Agent
and remaining after payment in full of all of the Secured Obligations
shall be paid over to the Pledgor or to whomsoever may be lawfully
entitled to receive such surplus.
SECTION 12. Registration Rights. If the Agent shall be
instructed by the Secured Party to exercise its right to sell all or any of the
Pledged Collateral pursuant to Section 11, the Company agrees that, upon request
of the Agent (acting upon the instructions of the Secured Party), the Company
will, at its own expense:
(a) execute and deliver all such instruments and documents,
and do or cause to be done all such other acts and things, as may be
necessary or, in the opinion of the Secured Party, advisable to
register such Pledged Collateral under the provisions of the Securities
Act of 1933, as from time to time amended (the "Securities Act"), and
to cause the registration statement relating thereto to become
effective and to remain effective for such period as prospectuses are
required by law to be furnished, and to make all amendments and
supplements thereto and to the related prospectus which, in the opinion
of the Secured Party, are necessary or advisable, all in conformity
with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable
thereto;
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(b) use its best efforts to qualify the Pledged Collateral
under the state securities or "Blue Sky" laws and to obtain all
necessary governmental approvals for the sale of the Pledged
Collateral, as requested by the Agent (acting upon the instructions of
the Secured Party);
(c) make available to its security holders, as soon as
practicable, an earning statement which will satisfy the provisions of
Section 11(a) of the Securities Act; and
(d) do or cause to be done all such other acts and things as
may be necessary to make such sale of the Pledged Collateral or any
part thereof valid and binding and in compliance with applicable law,
including, without limitation, causing to be delivered to the Agent and
the Secured Party, a legal opinion, in form and substance satisfactory
to the Agent and the Secured Party, with respect to the transfer of the
Pledged Shares to the Agent or any of its nominees being in compliance
with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable
thereto.
The Company further acknowledges the impossibility of ascertaining the amount of
damages which would be suffered by the Agent or the Secured Party by reason of
the failure by the Pledgor to perform any of the covenants contained in this
Section and, consequently, agrees that, if the Pledgor shall fail to perform any
of such covenants, it shall pay, as liquidated damages and not as a penalty, an
amount equal to the value of the Pledged Collateral on the date the Agent
(acting upon the instructions of the Secured Party) shall demand compliance with
this Section.
SECTION 13. Agent Provisions. (a) The Agent shall be entitled
to the fees set forth on Schedule III attached hereto for its services hereunder
and shall be reimbursed for all reasonable expenses, disbursements and advances
incurred or made by it in the performance of its duties hereunder. The Company
shall be solely responsible for payment of all amounts due to the Agent
hereunder.
(b) The Agent may resign and be discharged from its duties
hereunder at any time by giving written notice of such resignation to the
Pledgor, the Company and the Secured Party specifying a date (not less than
thirty days after the giving of such notice) when such resignation shall take
effect (the "Resignation Date"). Promptly after such notice, a successor agent
shall be appointed by the Secured Party, such successor agent to become Agent
hereunder upon the Resignation Date. The Agent shall continue to serve until its
successor is appointed hereunder. The Secured Party may at any time elect to
substitute a new Agent by giving notice thereof to the Pledgor, the Company and
the Agent then acting.
(c) The Agent shall have the power and authority expressly
conferred upon it in this Agreement and shall not be required to perform any act
or do anything not so expressly provided in this Agreement, except upon the
written instructions of the Secured Party. The Agent acting or refraining from
acting in good faith shall not be liable for any mistake of fact or error of
judgment by it or for any acts or omissions by it of any kind unless caused by
its willful misconduct or gross negligence, and shall be entitled to rely and
shall be protected in doing so,
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upon (i) any written notice, instrument or signature reasonably believed by it
to be genuine and to have been signed or presented by the proper party or
parties duly authorized to do so and (ii) the advice of counsel (which may be of
the Agent's own choosing). The Agent shall have no responsibility for the
contents of any writing submitted to it hereunder and shall be entitled to
reasonably rely in good faith and without any liability, upon the contents
thereof.
(d) The Company hereby agrees to indemnify the Agent and hold
it harmless against any and all liabilities incurred by it hereunder, including,
without limitation, any liabilities incurred in connection with any sale of the
Pledged Collateral in accordance with the terms hereof, except for liabilities
incurred by the Agent resulting from its own willful misconduct or gross
negligence.
(e) Without limiting the obligations of the Company under
Section 13(d) hereof, the Secured Party agrees to indemnify the Agent (to the
extent the Agent is not otherwise promptly reimbursed therefor by the Company,
or reimbursed pursuant to Section 11(c) hereof), against any and all liabilities
incurred by the Agent hereunder, including, without limitation, any liabilities
incurred in connection with any sale of the Pledged Collateral in accordance
with the terms hereof, except for liabilities incurred by the Agent resulting
from its own willful misconduct or gross negligence.
SECTION 14. Expenses. The Company will upon demand pay to the
Agent and the Secured Party, as applicable, the amount of any and all reasonable
expenses, including the reasonable fees and expenses of its counsel and of any
experts and agents, which the Agent or the Secured Party may incur in connection
with (i) the administration of this Agreement, (ii) the custody or preservation
of, or the sale of, collection from, or other realization upon, any of the
Pledged Collateral, (iii) the exercise or enforcement of any of the rights of
the Agent or the Secured Party hereunder or (iv) the failure by the Pledgor or
the Company to perform or observe any of the provisions hereof.
SECTION 15. Security Interest Absolute. The obligations of the
Pledgor under this Agreement are independent of the Obligations, and a separate
action or actions may be brought and prosecuted against the Pledgor to enforce
this Agreement, irrespective of whether any action is brought against the
Company or whether the Company is joined in any such action or actions. All
rights of the Agent and the Secured Party, the security interests hereunder, and
all obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of the Guarantee or
any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the
Guarantee, including, without limitation, any increase in the
Obligations resulting from the provision by the Secured Party of
additional services to Global Freeway;
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(iii) any taking, exchange, release or non-perfection of any
other collateral, or any taking, release or amendment or waiver of or
consent to departure from any guaranty, for all or any of the
Obligations;
(iv) any manner of application of collateral, or proceeds
thereof, to all or any of the Obligations, or any manner of sale or
other disposition of any collateral for all or any part of the
Obligations or any other assets of the Company or any of its
subsidiaries;
(v) any change, restructuring or termination of the corporate
structure or existence of the Company or any of its subsidiaries; or
(vi) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Company or a third party
pledgor.
SECTION 16. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, and no consent to any departure by the Pledgor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Agent and the Secured Party, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
SECTION 17. Addresses for Notices. All notices, requests,
demands, instructions and other communications hereunder shall be in writing and
shall be deemed to have been duly given (i) if delivered in person, (ii) three
days after being mailed by registered or certified mail (postage prepaid, return
receipt requested) from an address in the forty-eight contiguous United States
to another address in the forty-eight contiguous United States, (iii) upon
receipt if mailed as provided in clause (ii) above to or from an address other
than in the forty-eight contiguous United States, or (iv) in the case of
transmission by telecopier, when confirmation of receipt is obtained, in all
cases to the respective parties as set forth below; provided, however, that all
notices to the Agent hereunder shall be effective only upon the receipt thereof
by the Agent.
(i) If to the Pledgor, to:
Tech Capital Group Limited
City Tower, Level 4
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XXXX 0XX
Attention: Xxxxxxxxxxx Xxxx, Director
Telephone:
Facsimile:
(ii) If to the Secured Party, to:
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Global One Communications Pty, Ltd.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Xx. Vice-President/
General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) If to the Agent, to:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/7
(iv) If to the Company, to:
XX0xxx.xxx, Inc.
00 Xxxxxxxxx
Xxxxxx, XX0X 0XX
Attention: Xx. Xxx Xxxx
Telephone: 00 000 000 0000
Facsimile: 44 207 451 2469
or to such other address as the party to whom notice is to be
given may have previously furnished to the others in writing in the manner set
forth above (provided that notice of any change of address shall be effective
only upon receipt thereof).
SECTION 18. Continuing Security Interest. This Agreement shall
create a continuing security interest in the Pledged Collateral and shall (i)
remain in full force and effect until the payment in full of the Obligations and
all other amounts payable under this Agreement, (ii) be binding upon the
Pledgor, its successors and assigns, and (iii) inure, together with the rights
and remedies of the Agent hereunder, to the benefit of, and be enforceable by,
the Agent, the Secured Party and their respective successors, transferees and
assigns. Upon the payment in full of the Obligations and all other amounts
payable under this Agreement, the security interest granted hereby shall
terminate and all rights to the Pledged Collateral shall revert to the Pledgor.
Upon any such termination, the Agent will, at the Pledgor's expense, return to
the Pledgor such of the Pledged Collateral as shall not have been sold or
otherwise applied pursuant to the terms hereof and execute, without recourse,
representation or warranty of any kind, and deliver to the Pledgor such
documents as the Pledgor shall prepare and reasonably request to evidence such
termination, all at the cost of the Pledgor.
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SECTION 19. Governing Law; Terms. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York. Unless otherwise defined herein, terms defined in Article 9 of the Code
are used herein as therein defined.
SECTION 20. Acknowledgments and Agreements.
(a) The Company expressly acknowledges and agrees that the
Secured Party's willingness to enter into this Agreement shall not be construed
as a waiver of any power or right of the Secured Party to enforce the
obligations of the Company under the Guarantee. The Company expressly
acknowledges and agrees that the Secured Party is entitled to exercise all
remedies available to it under the Guarantee or by statute or by rule of law in
connection with the enforcement of the Guarantee. In no event shall the
execution, delivery and performance of this Agreement by the Company be deemed
to be satisfaction of the obligations of the Company under the Guarantee;
provided, however, that any proceeds resulting from the sale of the Pledged
Shares pursuant hereto shall be applied by the Secured Party to reduce the
outstanding amount due and payable under the Guarantee.
(b) The Company expressly acknowledges and agrees that this
Agreement shall not affect in any manner whatsoever the rights and remedies
available to the Secured Party with respect to the Service Contracts, including,
without limitation, the Secured Party's right to terminate the services provided
under the Service Contracts due to Global Freeway's failure to make the payments
required thereunder.
(c) Each of the Company and the Pledgor expressly waives any
right it may have to obtain from any court any injunctive relief, including,
without limitation, any temporary restraining order or preliminary injunction,
against the Secured Party, the Agent or any third party in connection with the
exercise by the Secured Party of any of its rights under this Agreement.
(d) The Company agrees to prepare and deliver at its own
expense, and to reimburse the Agent and the Secured Party, as applicable, for
all expenses incurred by such party in connection with, any filings required
under the rules and regulations of the Securities and Exchange Commission in
connection with the pledge of the Pledged Shares to the Agent hereunder.
(e) The Company agrees to reimburse the Agent and the Secured
Party for any and all filing fees and other expenses incurred by such parties in
connection with any Xxxx-Xxxxx-Xxxxxx filing that may be required in connection
with the transactions contemplated hereunder.
(f) The Board of Directors of the Company has approved the
terms of this Agreement and the consummation of the transactions contemplated
hereby, including, without limitation, the exercise of remedies hereunder, and
such approval constitutes approval of this Agreement and the transactions
contemplated hereby under the provisions of Section 203 of the Delaware General
Corporation Law.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
TECH CAPITAL GROUP LIMITED, as the Pledgor
By: ___________________________________
Name:
Title:
XX0XXX.XXX, INC., as the Company
By: __________________________________
Name:
Title:
GLOBAL ONE COMMUNICATIONS PTY, LTD.,
as the Secured Party
By: ___________________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK,
as the Agent
By: ___________________________________
Name:
Title:
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SCHEDULE I
Percentage of
Class of Stock Stock Certificate No. Par Value Number of Shares Outstanding Shares
-------------- --------------------- --------- ---------------- ------------------
Common Stock 3296 $0.001 950,000
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SCHEDULE II
PAYMENT SCHEDULE
AMOUNT
PAYMENT DATE (AUSTRALIAN DOLLARS)
------------ --------------------
27-Dec-00 200,000
5-Jan-01 200,000
10-Jan-01 200,000
17-Jan-01 200,000
24-Jan-01 200,000
31-Jan-01 200,000
31-Jan-01 12,500,000
7-Feb-01 200,000
14-Feb-01 200,000
21-Feb-01 200,000
28-Feb-01 200,000
7-Mar-01 200,000
14-Mar-01 200,000
21-Mar-01 200,000
28-Mar-01 200,000
31-Mar-01 12,500,000
31-Mar-01 19,927,000*
4-Apr-01 200,000
11-Apr-01 200,000
* Or such other amount as shall be agreed to by the Company and the Secured
Party prior to March 31, 2001.
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SCHEDULE III
AGENT'S FEES
INITIAL CHARGE: $5,000.00
Covers the acceptance of appointment as Agent, including the complete study of
drafts of the Stock Pledge Agreement and all supporting documents in connection
therewith, conferences until the final Agreement is agreed upon and execution
thereof. Out-of-Pocket expenses associated with the closing, including the fees
and expenses of the Agent's counsel, will be billed to XX0xxx.xxx, Inc. at cost.
ANNUAL ADMINISTRATION CHARGES: $5,000.00
Covers administrative duties in connection with the provisions of the Stock
Pledge Agreement.
CUSTODIAL CHARGES: 3.50 Basis Points on the value of pledged assets held
This fee is will be computed and billed quarterly in arrears.
The above Custodial Charge is subject to an annual minimum of $2,500.00.
ACTIVITY CHARGES: where applicable
INTERIM INVESTMENT IN MONEY MARKET FUNDS:
No charge for investment in available money market funds
DIVIDEND COLLECTION:
Posting of Stock Dividends, each (Included)
WIRE TRANSFERS:
per outgoing wire: $25.00
