Exhibit 10.42
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Agreement"), is dated as of October 6, 2000,
and is entered into by and between ePRESENCE, INC., a Massachusetts corporation
(the "Pledgor"), and FLEET NATIONAL BANK, (the "Secured Party").
WITNESSETH
WHEREAS, the Pledgor is the legal and beneficial owner of the shares of
stock described in Schedule I annexed hereto and issued by the corporations
named therein (the "Pledged Shares");
WHEREAS, the Pledgor and the Secured Party have entered into a Credit
Agreement dated as of the date hereof (said Credit Agreement, as it may
hereafter be amended, supplemented or otherwise modified from time to time,
being the "Credit Agreement", the terms defined therein and not otherwise
defined herein being used herein as therein defined) with the Pledgor and
certain subsidiaries of the Pledgor, pursuant to which the Secured Party have
made certain commitments, subject to the terms and conditions set forth in the
Credit Agreement, to extend certain credit facilities to the Pledgor;
WHEREAS, it is a condition precedent to the initial extensions of credit
by the Secured Party under the Credit Agreement that the Pledgor shall have
granted the security interests and undertaken the obligations contemplated by
this Agreement;
NOW, THEREFORE, in order to induce The Secured Party to make Loans and
other extensions of credit under the Credit Agreement and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Pledgor hereby agrees with the Secured Party as follows:
SECTION 1. Pledge of Security.
The Pledgor hereby pledges and assigns to the Secured Party, and hereby
grants to the Secured Party a security interest in, all of the Pledgor's right,
title and interest in and to the following (the "Pledged Collateral"):
(a) the Pledged Shares and the certificates representing the Pledged
Shares and any interest of the Pledgor in the entries on the books of any
financial or securities intermediary pertaining to the Pledged Shares, and all
dividends, cash, warrants, rights, instruments and other property or proceeds
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of the Pledged Shares;
(b) all additional shares of, and all securities convertible into and
warrants, options and other rights to purchase or otherwise acquire, stock of
any issuer of the Pledged Shares from time to time acquired by the Pledgor in
any manner (which shares shall be deemed to be part of the Pledged Shares), the
certificates or other instruments representing such additional shares,
securities, warrants, options or other rights and any interest of the Pledgor in
the entries on the books of any financial or securities intermediary pertaining
to such additional shares, and all dividends, cash, warrants, rights,
instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of such additional shares, securities, warrants, options or other
rights;
(c) all shares of, and all securities convertible into and warrants,
options and other rights to purchase or otherwise acquire, stock of any Person
that, after the date of this Agreement, becomes, as a result of any occurrence,
a Guarantor (which shares shall be deemed to be part of the Pledged Shares), the
certificates or other instruments representing such shares, securities,
warrants, options or other rights and any interest of the Pledgor in the entries
on the books of any financial or securities intermediary pertaining to such
shares, and all dividends, cash, warrants, rights, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares,
securities, warrants, options or other rights; and
(d) to the extent not covered by clauses (a) through (c) above, all
proceeds of any or all of the foregoing Pledged Collateral. For purposes of this
Agreement, the term "proceeds" includes whatever is receivable or received when
Pledged Collateral or proceeds are sold, exchanged, collected or otherwise
disposed of, whether such disposition is voluntary or involuntary, and includes,
without limitation, proceeds of any indemnity or guaranty payable to the Pledgor
or the Secured Party from time to time with respect to any of the Pledged
Collateral.
SECTION 2. Security for Obligations.
This Agreement secures, and the Pledged Collateral is collateral security
for, all Obligations of the Pledgor as such term is defined in the Credit
Agreement, including without limitation, all obligations of the Pledgor
hereunder.
SECTION 3. Delivery of Pledged Collateral.
All certificates or instruments representing or evidencing the Pledged
Collateral shall be delivered to and held by or on behalf of the Secured Party
pursuant hereto and shall be in suitable form for transfer by delivery or, as
applicable, shall be accompanied by the Pledgor's endorsement, where necessary,
or duly executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Secured Party. The Secured Party shall have the
right, at any time following the occurrence and continuance of an Event of
Default, in its discretion and without notice to the Pledgor, to transfer to or
to register in the name of the Secured Party or any of its nominees any or all
of the Pledged Collateral. In addition, the Secured Party shall have the right
at any time to exchange certificates or instruments representing or evidencing
Pledged Collateral for certificates or instruments of smaller or larger
denominations.
SECTION 4. Representations and Warranties.
The Pledgor represents and warrants as follows:
(a) Due Authorization of Pledged Collateral. All of the Pledged Shares
have been duly authorized and validly issued and are fully paid and
non-assessable.
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(b) Description of Pledged Collateral. The Pledged Shares constitute that
percentage of the issued and outstanding shares of stock of each issuer thereof
set forth in Schedule I and there are no outstanding warrants, options or other
rights to purchase, or other agreements outstanding with respect to, or property
that is now or hereafter convertible into, or that requires the issuance or sale
of, any Pledged Shares.
(c) Ownership of Pledged Collateral. The Pledgor is the legal, record and
beneficial owner of the Pledged Collateral free and clear of any Encumbrance
except for the security interest created by this Agreement.
(d) Governmental Authorizations. No authorization, approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for either (i) the pledge by the Pledgor of the
Pledged Collateral pursuant to this Agreement and the grant by the Pledgor of
the security interest granted hereby or for the execution, delivery or
performance of this Agreement by the Pledgor or (ii) the exercise by the Secured
Party of the voting or other rights, or the remedies in respect of the Pledged
Collateral, provided for in this Agreement.
(e) Issuer Authorization. No consent, authorization, approval or other
action by, and no notice to or filing with, any corporate action is required on
behalf of the issuers of the Pledged Shares for either (i) the pledge by the
Pledgor of the Pledged Collateral pursuant to this Agreement and the grant by
the Pledgor of the security interest granted hereby or for the execution,
delivery or performance of this Agreement by the Pledgor or (ii) the exercise by
the Secured Party of the voting or other rights, or the remedies in respect of
any Pledged Collateral provided for in this Agreement.
(f) Perfection. The pledge of the Pledged Collateral pursuant to this
Agreement creates a valid and perfected first priority security interest in such
Pledged Collateral securing the payment of the Secured Obligations, and as a
result of the delivery of the certificates representing the Pledged Shares to
the Secured Party, together with the appropriately completed and executed
instruments of transfer, the Secured Party will have "control" over the Pledged
Shares, as such term is defined in the Uniform Commercial Code as in effect in
The Commonwealth of Massachusetts.
(g) Margin Regulations. The pledge of the Pledged Collateral pursuant to
this Agreement does not violate Regulation T, U or X of the Board of Governors
of the Federal Reserve System.
(h) Other Information. All information heretofore, herein or hereafter
supplied to the Secured Party by or on behalf of Pledgor with respect to the
Pledged Collateral is accurate and complete in all material respects.
SECTION 5. Transfers and Other Liens; Additional Pledged Collateral; etc.
The Pledgor shall:
(a) 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,
(ii) create or suffer to exist any
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lien upon or with respect to any of the Pledged Collateral, except for the
security interest under this Agreement, or (iii) permit any issuer of Pledged
Shares to merge or consolidate, except, in each case, to the extent expressly
permitted in the Credit Agreement;
(b) (i) cause each issuer of Pledged Shares not to issue any stock or
other securities in addition to or in substitution for the Pledged Shares issued
by such issuer except to the Pledgor, (ii) pledge hereunder, immediately upon
its acquisition (directly or indirectly) thereof, any and all additional shares
of stock or other securities of each issuer of Pledged Shares, and (iii) except
with respect to shares of common stock of Switchboard currently owned by the
Pledgor and any investments permitted to be acquired by the terms of Section 7.7
of the Credit Agreement, pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all shares of stock of or other
securities indicating ownership interest in any Person;
(c) promptly deliver to the Secured Party all written notices received by
it with respect to the Pledged Collateral; and
(d) pay promptly when due all taxes, assessments and governmental charges
or levies imposed upon, and all claims against, the Pledged Collateral, except
to the extent the validity thereof is being contested in good faith; provided
that the Pledgor shall in any event pay such taxes, assessments, charges, levies
or claims not later than five Business Days prior to the date of any proposed
sale under any judgment, writ or warrant of attachment entered or filed against
the Pledgor or any of the Pledged Collateral as a result of the failure to make
such payment.
SECTION 6. Further Assurances: Pledge Amendments.
(a) The Pledgor agrees that from time to time, at its expense, 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 Secured
Party may request, in order to perfect and protect any security interest granted
or purported to be granted hereby or to enable the Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any Pledged
Collateral. Without limiting the generality of the foregoing, the Pledgor will:
(i) execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Secured Party may request, in order to perfect and preserve
the security interests granted or purported to be granted hereby, (ii) do all
things necessary or desirable, as determined by the Secured Party, to transfer
control over any Pledged Collateral to the Secured Party including, but not
limited to, registering the Secured Party as the holder of any securities
entitlement or commodities contract, as appropriate, relating to the Pledged
Collateral and entering into any control agreement, in the form designated by
the Secured Party, pursuant to which the securities intermediary shall agree
that it will comply with the entitlement orders originated by the Secured Party
without further consent by the Pledgor, with respect to the Pledged Collateral,
and entering into any control agreement, in the form designated by the Secured
Party, pursuant to which the commodity intermediary shall agree that it will
apply any value distributed on account of any commodity contract constituting
Pledged Collateral, as directed by the Secured Party without further consent by
the Pledgor and (iii) at the Secured Party's request, appear in and defend any
action or proceeding that may affect the Pledgor's title to or the Secured
Party's security interest in all or any part of the Pledged Collateral.
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(b) The Pledgor further agrees that it will, upon obtaining any additional
shares of stock or other securities required to be pledged hereunder as provided
in Section 5(b), promptly (and in any event within five Business Days) deliver
to the Secured Party a Pledge Amendment, duly executed by the Pledgor, in
substantially the form of Schedule II annexed hereto a ("Pledge Amendment"), in
respect of the additional Pledged Shares to be pledged pursuant to this
Agreement. The Pledgor hereby authorizes the Secured Party to attach each Pledge
Amendment to this Agreement and agrees that all Pledged Shares listed on any
Pledge Amendment delivered to the Secured Party shall for all purposes hereunder
be considered Pledged Collateral; provided that the failure of the Pledgor to
execute a Pledge Amendment with respect to any additional Pledged Shares pledged
pursuant to this Agreement shall not impair the security interest of the Secured
Party therein or otherwise adversely affect the rights and remedies of the
Secured Party hereunder with respect thereto.
SECTION 7. 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 any and all voting and
other consensual rights pertaining to the Pledged Shares or any part
thereof for any purpose not inconsistent with the terms of this Agreement
or the Credit Agreement;
(ii) The Pledgor shall be entitled to receive and retain, and to
utilize free and clear of the lien of this Agreement, any and all
dividends paid in respect of the Pledged Collateral; provided, however
that any and all 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
shall be, and shall forthwith be delivered to the Secured Party to hold
as, Pledged Collateral and shall, if received by the Pledgor, be received
in trust for the benefit of the Secured Party, and be forthwith delivered
to the Secured Party as Pledged Collateral in the same form as so received
(with all necessary endorsements); and
(iii) The Secured Party shall promptly execute and deliver (or cause
to be executed and delivered) to the Pledgor all such proxies, dividend
payment orders and other instruments as the Pledgor may from time to time
reasonably request for the purpose of enabling the Pledgor to exercise the
voting and other consensual rights which it is entitled to exercise
pursuant to paragraph (i) above and to receive the dividends, and other
distributions which it is authorized to receive and retain pursuant to
paragraph (ii) above.
(b) Upon the occurrence and during the continuation of an Event of
Default:
(i) upon written notice from the Secured Party to the Pledgor, all
rights of the Pledgor to exercise the voting and other consensual rights
which it would otherwise be entitled to exercise pursuant to Section
7(a)(i) shall cease, and all such rights shall thereupon become vested in
the Secured Party who shall thereupon have the sole right to exercise such
voting and other consensual rights;
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(ii) all rights of the Pledgor to receive the dividend and other
distributions which it would otherwise be authorized to receive and retain
pursuant to Section 7(a)(ii) shall cease, and all such rights shall
thereupon become vested in the Secured Party who shall thereupon have the
sole right to receive and hold as Pledged Collateral such dividends and
other distributions;
(iii) all dividends and other distributions which are received by
the Pledgor contrary to the provisions of paragraph (ii) of this Section
7(b) shall be received in trust for the benefit of the Secured Party,
shall be segregated from other funds of the Pledgor and shall forthwith be
paid over to the Secured Party as Pledged Collateral in the same form as
so received (with any necessary endorsements); and
(iv) the Secured Party may, at its discretion, transfer the Pledged
Collateral to itself, or to its nominee.
(c) In order to permit the Secured Party to exercise the voting and other
consensual rights which it may be entitled to exercise pursuant to Section
7(b)(i) and to receive all dividends and other distributions which it may be
entitled to receive under Section 7(a)(ii) or Section 7(b)(ii), the Pledgor
shall promptly execute and deliver (or cause to be executed and delivered) to
the Secured Party all such proxies, dividend payment orders and other
instruments as the Secured Party may from time to time reasonably request.
SECTION 8. Secured Party Appointed Attorney-in-Fact.
The Pledgor hereby irrevocably appoints the Secured Party as the Pledgor's
attorney-in-fact, with full authority in the place and stead of the Pledgor and
in the name of the Pledgor, the Secured Party or otherwise, from time to time,
while an Event of Default has occurred and is continuing, in the Secured Party's
discretion to take any action and to execute any instrument that the Secured
Party may deem necessary or advisable to accomplish the purposes of this
Agreement, including without limitation:
(a) to file one or more financing or continuation statements, or
amendments thereto, relative to all or any part of the Pledged Collateral
without the signature of the Pledgor; and
(b) subject to the rights of the Pledgor under Section 7(a), to receive,
endorse and collect any 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. Secured Party May Perform.
If the Pledgor fails to perform any agreement contained herein, the
Secured Party may itself perform, or cause performance of, such agreement, and
the reasonable expenses of the Secured Party incurred in connection therewith
shall be payable by the Pledgor under Section 14(b).
SECTION 10. Standard of Care.
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The powers conferred on the Secured Party 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 exercise of reasonable care in the
custody of any Pledged Collateral in its possession and the accounting for
moneys actually received by it hereunder, the Secured Party shall have no duty
as to any Pledged Collateral, it being understood that the Secured Party shall
have no responsibility for (a) ascertaining or taking action with respect to
calls, conversions, exchanges, tenders or other matters relating to any Pledged
Collateral, whether or not the Secured Party has or is deemed to have knowledge
of such matters, (b) taking any necessary steps (other than steps taken in
accordance with the standard of care set forth above to maintain possession of
the Pledged Collateral) to preserve rights against any parties with respect to
any Pledged Collateral, (c) taking any necessary steps to collect or realize
upon the Secured Obligations or any guarantee therefor, or any part thereof, or
any of the Pledged Collateral, or (d) initiating any action to protect the
Pledged Collateral against the possibility of a decline in market value. The
Secured Party shall be deemed to have exercised reasonable care in the custody
and preservation of Pledged Collateral in its possession if such Pledged
Collateral is accorded treatment substantially equal to that which the Secured
Party accords its own property consisting of negotiable securities.
SECTION 11. Remedies.
(a) If any Event of Default shall have occurred and be continuing, the
Secured Party may exercise in respect of the Pledged Collateral, in addition to
all 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 as in effect in any relevant jurisdiction (the "Code") (whether
or not the Code applies to the affected Pledged Collateral), and the Secured
Party may also in its sole discretion, 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 or broker's board or at any of the Secured
Party's offices or elsewhere, for cash, on credit or for future delivery, at
such time or times and at such price or prices and upon such other terms as the
Secured Party may deem commercially reasonable, irrespective of the impact of
any such sales on the market price of the Pledged Collateral. The Secured Party
may be the purchaser of any or all of the Pledged Collateral at any such public
sale and the Secured Party shall be entitled, for the purpose of bidding and
making settlement or payment of the purchase price for all or any portion of the
Pledged Collateral sold at any such public sale, to use and apply any of the
Secured Obligations as a credit on account of the purchase price for any Pledged
Collateral payable by the Secured Party at such sale. Each purchaser at any
public or private sale shall hold the property sold absolutely free from any
claim or right on the part of the Pledgor, and the Pledgor hereby waives (to the
extent permitted by applicable law) all rights of redemption, stay and/or
appraisal which it now has or may at any time in the future have under any rule
of law or statute now existing or hereafter enacted. The Pledgor agrees that, to
the extent notice of sale shall be required by law, at least ten (10) Business
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 Secured Party shall not be obligated to make any sale of
Pledged Collateral regardless of notice of sale having been given. The Secured
Party 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. If the proceeds of
any sale or other disposition of the Pledged Collateral are
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insufficient to pay all the Secured Obligations, the Pledgor shall be liable for
the deficiency and the reasonable fees of any attorneys employed by the Secured
Party to collect such deficiency.
(b) The Pledgor recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933 ("Securities Act") and applicable state
securities laws, the Secured Party may be compelled, with respect to any sale of
all or any part of the Pledged Collateral conducted without prior registration
or qualification of such Pledged Collateral under the Securities Act and/or such
state securities laws, to limit purchasers to those who will agree, among other
things, to acquire the Pledged Collateral for their own account, for investment
and not with a view to the distribution or resale thereof. The Pledgor
acknowledges that any such private sales may be at prices and on terms less
favorable than those obtainable through a public sale without such restrictions
(including, without limitation, a public offering made pursuant to a
registration statement under the Securities Act) and, notwithstanding such
circumstances, the Pledgor agrees that the choice of a private sale shall be
deemed to be a commercially reasonable choice and that the Secured Party shall
have no obligation to engage in public sales and no obligation to delay the sale
of any Pledged Collateral for the period of time necessary to permit the issuer
thereof to register it for a form of public sale requiring registration under
the Securities Act or under applicable state securities laws, even if such
issuer would, or should, agree to so register it.
(c) If the Secured Party determines to exercise its right to sell any or
all of the Pledged Collateral, upon written request, the Pledgor shall and shall
cause each issuer of any Pledged Shares to be sold hereunder from time to time
to furnish to the Secured Party all such information as the Secured Party may
request in order to determine the number of shares and other instruments
included in the Pledged Collateral which may be sold by the Secured Party in
exempt transactions under the Securities Act and the rules and regulations of
the Securities and Exchange Commission thereunder, as the same are from time to
time in effect.
SECTION 12. Application of Proceeds.
Except as expressly provided elsewhere in this Agreement, all proceeds
received by the Secured Party in respect of any sale of, collection from, or
other realization upon all or any part of the Pledged Collateral may, in the
discretion of the Secured Party, be held by the Secured Party as Pledged
Collateral for, and/or then, or at any time thereafter, applied in full or in
part by the Secured Party to the reasonable expenses of retaking, holding,
preparing for sale, selling and the like, to reasonable attorneys fees, travel
and all other expenses which may be incurred by the Secured Party in attempting
to collect the Secured Obligations or to enforce this Agreement or in the
prosecution or defense of any action or proceeding related to the subject matter
of this Agreement, and then to the Secured Obligations in the order set forth in
such order or preference as the Secured Party may determine after proper
allowance for Secured Obligations not then due. Only after such applications,
and after payment by the Secured Party of any amount required by ss.9-504(l)(c)
of the Uniform Commercial Code of the Commonwealth of Massachusetts, need the
Secured Party account to the Pledgor for any surplus.
SECTION 13. Indemnity and Expenses.
(a) The Pledgor agrees to indemnify the Secured Party and each Lender from
and against any and all claims, losses and liabilities in any way relating to,
growing out of or
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resulting from this Agreement and the transactions contemplated hereby
(including, without limitation, enforcement of this Agreement) except to the
extent arising from the gross negligence or willful misconduct of the Secured
Party or such Lender.
(b) The Pledgor will pay to the Secured Party upon demand the amount of
any and all costs and expenses, including the reasonable fees and expenses of
its counsel and of any experts and agents, that 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 Secured Party hereunder, or (iv) the failure by the Pledgor to
perform or observe any of the provisions hereof.
SECTION 14. Continuing Security Interest: Transfer of Loans and Notes.
This Agreement shall create a continuing security interest in the Pledged
Collateral and shall (a) remain in full force and effect until the indefeasible
payment in full of all Secured Obligations and the cancellation or termination
of all of the Commitments, (b) be binding upon the Pledgor, its successors and
assigns, and (c) inure, together with the rights and remedies of the Secured
Party hereunder, to the benefit of the Secured Party and its successors,
transferees and assigns. Without limiting the generality of the foregoing clause
(c), the Secured Party may assign or otherwise transfer any Loans and Notes held
by it to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to the Secured Party herein or
otherwise. Upon the indefeasible payment in full of all Secured Obligations and
the cancellation or termination of all of the Commitments, the security interest
granted hereby shall terminate and all rights to the Pledged Collateral shall
revert to the Pledgor. Upon any such termination the Secured Party will, at the
Pledgor's expense, execute and deliver to the Pledgor such documents as the
Pledgor shall reasonably request to evidence such termination and the Pledgor
shall be entitled to the return, upon its request and at its expense, against
receipt and without recourse to the Secured Party, of such of the Pledged
Collateral as shall not have been sold or otherwise applied pursuant to the
terms hereof.
SECTION 15. Amendments: Etc.
No amendment or waiver of any provision of this Agreement, or 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 Secured Party, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given.
SECTION 16. Notices.
All notices hereunder to any party hereto shall be in writing and shall be
deemed to have been given when given in accordance with the Credit Agreement.
SECTION 17. Failure or Indulgence Not Waiver: Remedies Cumulative.
No failure or delay on the part of the Secured Party in the exercise of
any power, right or privilege hereunder shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence therein,
nor shall any single or partial exercise of any such power,
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right or privilege preclude any other or further exercise thereof or of any
other power, right or privilege. All rights and remedies existing under this
Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
SECTION 18. Severability.
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 19. Headings.
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
SECTION 20. Governing Law; Consent to Jurisdiction.
THIS AGREEMENT IS A CONTRACT UNDER THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SAID COMMONWEALTH (EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW). THE PLEDGOR CONSENTS TO THE JURISDICTION OF ANY OF
THE FEDERAL OR STATE COURTS LOCATED IN SUFFOLK COUNTY IN THE COMMONWEALTH OF
MASSACHUSETTS IN CONNECTION WITH ANY SUIT TO ENFORCE THE RIGHTS OF THE SECURED
PARTY UNDER THIS AGREEMENT. THE PLEDGOR IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION BROUGHT
IN THE COURTS REFERRED TO IN THE PRECEDING SENTENCE AND IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH ACTION THAT SUCH ACTION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
SECTION 23. Waiver of Jury Trial.
THE PLEDGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS
RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY
DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER,
THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS OR ANY COURSE OF CONDUCT, COURSE
OF DEALINGS, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY.
EXCEPT AS PROHIBITED BY LAW, THE PLEDGOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES. THE PLEDGOR CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF THE SECURED PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE SECURED PARTY WOULD NOT, IN THE EVENT OF
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LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS. THE WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN CONSTITUTE A MATERIAL INDUCEMENT FOR THE SECURED
PARTY TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND TO MAKE THE
LOAN.
SECTION 24. Counterparts.
This Agreement may be executed in one or more counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
[Remainder of page intentionally left blank.]
-11-
IN WITNESS WHEREOF, the Pledgor and the Secured Party have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Head. Jr.
-----------------------------
Xxxxxx X. Head, Jr.
Director
Notice Address:
000 Xxxxxxx Xxxxxx
Mail Stop MA DE 10008H
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Head, Jr., Director
Facsimile: (000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxxxxx & Worcester, LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
ePRESENCE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: SVP and CFO
Notice Address:
000 Xxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: President
Facsimile:
-12-
PLEDGE AGREEMENT
SCHEDULE I
------------------------------------------------------------------------------------------------
% of
Cert. Outstanding
Pledgor Issuer Class #s Par Shares of Stock
------- ------ ----- ----- --- ---------------
------------------------------------------------------------------------------------------------
ePresence, Inc. ePresence International Common Stock 1 $.10 Par 100%
Incorporated (f.k.a. Value
Banyan Systems
International
Incorporated)
------------------------------------------------------------------------------------------------
ePresence, Inc. ePresence Securities Common Stock 1 $.01 Par 100%
Corporation (f.k.a. Value
Banyan Securities
Corporation)
------------------------------------------------------------------------------------------------
ePresence, Inc. ePresence Web Common Stock 7 No Par 100%
Consulting, Inc. (f k.a. Value
ePresence, Inc.)
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series A 11 No Par 50%
Designs Common Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series A 12 No Par 50%
Designs Common Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 1 No Par 29.6%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 2 No Par 22.2%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 3 No Par 10.4%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 4 No Par 7.4%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 5 No Par 7.4%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 6 No Par 7.4%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 7 No Par 3.7%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
-13-
------------------------------------------------------------------------------------------------
% of
Cert. Outstanding
Pledgor Issuer Class #s Par Shares of Stock
------- ------ ----- ----- --- ---------------
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 8 No Par 2.9%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 9 No Par 2.6%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 10 No Par 1.9%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 11 No Par 1.9%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 12 No Par .65%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 13 No Par .65%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 14 No Par .65%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
ePresence, Inc. Strategic Network Series B 15 No Par .65%
Designs Common Non- Value
Voting Stock
------------------------------------------------------------------------------------------------
-14-
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated _____________, is delivered pursuant to
Section 6(b) of the Pledge Agreement referred to below. The undersigned hereby
agrees that this Pledge Amendment may be attached to the Pledge Agreement dated
as of October 6, 2000, between the undersigned and Fleet National Bank, as the
Secured Party (the "Pledge Agreement", capitalized terms defined therein being
used herein as therein defined), and that the shares listed on this Pledge
Amendment shall be deemed to be part of the Pledged Shares and shall become part
of the Pledged Collateral and shall secure all Obligations.
ePRESENCE, INC.
By: ___________________________
[Name]
[Title]
--------------------------------------------------------------------------------
Class Stock Number
of Certificate Par of
Stock Issuer Stock Numbers Value Shares
--------------------------------------------------------------------------------
-15-
