PLEDGE OF SHARES
Exhibit 10.4
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Over
certain shares in
Business
Marketing Services, Inc
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BETWEEN
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Xxxx
Xxxxxxx
as
pledgor
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AND
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as
pledgee
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1
| 1. BACKGROUND | i |
| 2. DEFINITIONS | ii |
| 3. PLEDGE | ii |
| 4. VOTING RIGHTS | ii |
| 5. PERFECTION | ii |
| 6. CONTINUING SECURITY | ii |
| 7. ENFORCEMENT | iii |
| 8. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS | iii |
| 9. POWER OF ATTORNEY | iv |
| 10. ASSIGNMENT | iv |
| 11. LAW AND JURISDICTION | v |
Schedule
1: Power
of attorney
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(1)
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Xxxx
Xxxxxxx (the "Pledgor"), a Swedish natural person, passport no, [] with
home address at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx XX 00000, as
pledgor
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in favour
of
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(2)
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Founders
(the "Pledgee"), Xxxx Koutanov, Guy Xxxxxxxxxx, Xxxx Fle-Danijelovich as
pledgee.
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1.
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BACKGROUND
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The agreement.
Pursuant to a Asset Transfer Agreement (the "Agreement") dated the date hereof
between Business Marketing Services, Inc as buyer (the "Buyer") and the Pledgee
as seller, the Pledgee has agreed to sell its entire assets and rights in the
gTrade Trading Platform for an amount of USD 300,000 to the Buyer. The transfer
of ownership to the assets under the Agreement has been effectuated on the date
hereof. However, the Buyer has been granted a credit with respect to USD 300,000
of the purchase price, which only falls due on 31 May 2010. As security for this
credit Xxxx Xxxxxxx, shareholder in the Buyer, has agreed to pledge certain of
his shares in the Buyer to the Pledgee on the terms and conditions set forth
below.
2
Outstanding payment
obligation. The outstanding payment obligation of the Buyer under the
Agreement in the amount of USD 300,000 is referred to as the "Secured
Obligation". The Secured Obligation comprises all actual, contingent, present
and/or future obligations and liabilities of the Buyer from time to time to the
Pledgee with respect to payment of the outstanding part of the purchase price
under the Agreement.
The Company. Business
Marketing Services, Inc is an American company having its registered address at
Xxx Xxxxxxxx, 00xx
xxxxx, Xxxxxxxxx XX 00000 (the "Company"). The shares in the Company
are traded on the OTC BB in the US with the ticker symbol BMSV.
The shares. The
Pledgor is the owner of 300,000 shares in the Company.
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2.
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DEFINITIONS
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Defined terms. In
addition to the terms defined above, the following terms shall have the
following meaning in this Pledge Agreement:
"Shares" means
[300,000 of the Pledgor's present shares in the Company, including all rights to
receive dividends, liquidation or redemption proceeds.
Headings. In this
Pledge Agreement clause headings are for ease of reference only.
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3.
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PLEDGE
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Pledge. As security
for the fulfilment of the Secured Obligation, the Pledgor hereby pledges with
first priority to the Pledgee all its right, title and interest in and to the
Shares.
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4.
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VOTING
RIGHTS
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Voting rights.
Notwithstanding Clause 3, the Pledgor has the right
to exercise the voting rights on the Shares in a manner consistent with this
Pledge Agreement and the Agreement.
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5.
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PERFECTION
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Perfection. The
Pledgor undertakes immediately to procure that the Pledgee is registered as
pledgee in the OTC:BB system with respect to the Shares.
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6.
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CONTINUING
SECURITY
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Effective date. This
Pledge Agreement shall be effective as of the date hereof and shall continue to
be effective until the Secured Obligation have been fulfilled.
No discharge. This
Pledge Agreement will not be discharged or affected by:
3
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(a)
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any
invalidity or unenforceability of the Pledgor's or any other person's
obligations under the Agreement or any security granted in connection
therewith;
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(b)
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any
extensions or time granted to the Pledgor or any other person who is
liable for any obligations under the Agreement or any failure or delay in
enforcing any such obligations under the
Agreement;
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(c)
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any
release of or amendment to the Agreement any of the security granted in
connection therewith;
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(d)
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the
Pledgor or any other person who is liable for any of the obligations under
the Agreement being or becoming insolvent;
or
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(e)
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any
other act or omission of any kind by the Pledgor, the Pledgee or any other
person which might constitute a discharge or reduction of the Pledgor's
obligations under this Pledge
Agreement.
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Reinstatement in the event
of bankruptcy. If any payments received in relation to the Secured
Obligation are set aside in the event of a bankruptcy, the Secured Obligation
shall be restored to also include such payments and this Pledge Agreement shall
forthwith be in force notwithstanding any termination of this Pledge Agreement
and/or the fulfilment of the Secured Obligation.
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7.
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ENFORCEMENT
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Remedies. If the
Buyer has not paid the Secured Obligation in full to the Pledgee on 31 May 2010,
the Pledgee has the right to immediately:
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(a)
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sell
all or part of the Shares without judgement or any other basis for
execution;
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(b)
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exercise
any or all rights attached to the Shares including the voting
rights;
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8.
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REPRESENTATIONS,
WARRANTIES AND UNDERTAKINGS
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Representations and
warranties. The Pledgor represents and warrants to the Pledgee
that:
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(a)
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the
Shares are not subject to any encumbrances other than as set forth in this
Pledge Agreement;
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(b)
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none
of the Shares is subject to any shareholders' agreements;
and
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(c)
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there
are no provisions in the Company's Articles of Association and the Pledgor
is not subject to any other agreement, which restricts the transfer of the
Shares or the ability of the Pledgor to enter into this Pledge Agreement
(is this corrected? How about restricted shares?), including any rights of
first refusal, options, pre-emptive rights, requirements for consent or
any rights restricting or affecting the voting rights on or the disposal
of the Shares.
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Undertakings. The
Pledgor undertakes towards the Pledgee:
4
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(a)
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not
to grant or permit to exist, and immediately procure the removal of any
encumbrance on the Shares (including the voting rights), except as set out
in this Pledge Agreement;
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(b)
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not
to sell or otherwise dispose of the Shares fully or
partly;
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(c)
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immediately
to forward any relevant notices regarding the Shares and the Company to
the Pledgee;
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(d)
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to
execute and deliver to the Pledgee such other documents and do such acts
and take such steps which the Pledgee shall request for the purpose of
perfecting and exercising its rights under this Pledge
Agreement;
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(e)
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not
to enter into any shareholders' agreement with respect to the
Shares;
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(f)
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not
to vote, without the prior written consent of the Pledgee, for any
resolution or do or cause or permit to be done anything which will, or
could be reasonably expected to, materially adversely affect the Shares or
the effectiveness or value of the pledge or the Pledgee’s rights under
this Pledge Agreement; and
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(g)
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to
ensure that all share certificates and any other instruments issued in
relation to the Shares, are immediately delivered in original to the
Pledgee.
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(h)
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to
not impede upon the Pledgee's rights to the full enjoyment including the
sale of the Pledged Shares beyond those limitations that are imposed by
the U.S. Securities and Exchange Commission (the "SEC");
and
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(i)
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in
accordance to the Rule 144 of the SEC, the Pledgor will immediately upon
request, grant consent to the Pledgee to the removal of the restricted
legend from the Pledged Shares.
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9.
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POWER
OF ATTORNEY
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The
Pledgor irrevocably appoints the Pledgee as its agent with full power and
authority upon the occurrence of an event of default under the Agreement to act
for the Pledgor and in its name and on its behalf:
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(a)
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to
do such things and take such action as is set forth in Clause 7; and
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(b)
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to
sign and register all documents, which may be necessary in connection with
a transfer of the Shares and to receive and sign for all sale
proceeds.
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In case
of an event of default set forth in Section 9.1, the Pledgor will at the request
of the Pledgee issue a separate power of attorney in the form set out in Schedule 1, giving
the Pledgee the exclusive right to exercise or cause to be exercised the voting
right and other shareholder rights pertaining to all of the Pledgor’s shares and
other securities held in the Company, including but not limited to the Shares.
The power of attorney shall be renewed annually and the Pledgor shall ensure
that such power of attorney at all relevant times remains in
effect.
5
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10.
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ASSIGNMENT
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The
Pledgee may at any time assign or transfer all or part of its rights or
obligations under this Pledge Agreement without the prior consent from the
Pledgor.
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11.
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LAW
AND JURISDICTION
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Law. This Pledge
Agreement shall be governed by Australian law.
Main jurisdiction.
The courts of New South Wales in Australia shall have exclusive
jurisdiction with respect to any dispute arising out of or in connection with
this Pledge Agreement.
As
Pledgor
Xxxx
Xxxxxxx:
| Signature: /s/ Xxxx Xxxxxxx |
As
Pledgee
Founders:
| Signature: | |
| Print name: | |
| Capacity: |
6
Schedule
1
FORM
OF POWER OF ATTORNEY
Xxxx
Xxxxxxx (the “Pledgor”) hereby empowers any person duly appointed by Founders
(the Pledgee) to attend all general meetings of the shareholders in Business
Marketing Services, Inc (the Company) as the Pledgor’s representative
and to vote at such general meeting for all the shares in the Company owned by
the Pledgor.
This
power of attorney is irrevocable and will exclude the Pledgor from exercising
the voting rights at general meeting of shareholders in the
Company.
This
power of attorney becomes effective on the date it is signed by the Pledgor and
it shall remain in force for one year from such date.
This
power of attorney shall in all respects be governed by and construed in
accordance with the laws of new South Wales, Australia.
Date / 2010
________________________
Xxxx
Xxxxxxx
8
