EXHIBIT 10.2
STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT ("Agreement") entered into as of the 31st day of
July, 2002, by and among MOONLIGHT HOLDINGS LTD. (the "Secured Party"),
BRIGHTCUBE, INC., a Nevada corporation having its principal executive offices at
000 Xxxxxx Xxxxxx, Xx Xxxxxxx, XX 00000 ("Company") and Intellect Capital Group,
LLC (the "Pledgor").
RECITALS
A. Pledgor has agreed to pledge certain Company shares as security for (i)
the performance by the Company of its obligations under its Series 2002-01 10%
Notes in an aggregate principal amount of One Hundred Thousand and 00/100
Dollars ($100,000.00) payable to the Secured Party (the "Notes"); (ii) the
performance by the Company of its obligations, covenants, and agreements under
the Financing Agreement, of even date herewith (the "Financing Agreement")
between the Company and the Secured Party as well as the Related Agreements (as
that term is defined in the Financing Agreement), and (iii) the performance by
the Pledgor under the Limited Recourse Guaranty executed by the Pledgor in favor
of the Secured Party (the "Guaranty"). Capitalized terms in this Agreement which
are not identified herein will have the meanings given such terms in the
Financing Agreement.
B. The Secured Party is willing to enter into the Financing Agreement and
the other Related Agreements and to accept the Notes from the Company only upon
receiving Pledgor's guaranty and pledge of certain stock of the Company, as set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
conditions contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Grant of Security Interest. Pledgor hereby pledges to the Secured Party
as collateral and security for the Obligator's performance of the Aggregate
Secured Obligations (as defined below) all of the shares of Common Stock set
forth on the attached Schedule 1 of this Agreement (the "Pledged Shares").
Unless otherwise set forth on Schedule 1 of this Agreement, the Pledgor is the
beneficial and record owner of the Pledged Shares set forth on such Schedule.
Such Pledged Shares, together with any substitutes therefor, or proceeds
thereof, are hereinafter to collectively as the "Collateral."
2. Obligations Secured. During the term hereof, the Collateral shall
secure the following:
(i) the Secured Obligations (as defined in the Guaranty) and
(ii) the obligations of the Pledgor of the Pledgor's obligations,
covenants, and agreements under the Guaranty.
The obligations, covenants and agreements described in clauses (a) and (b) are
the "Aggregate Secured Obligations."
3. Perfection of Security Interest. Upon execution of this Agreement by
the Pledgor, the Pledgor shall deliver and transfer possession of the stock
certificates representing the Pledged Shares (the "Certificates"), together with
stock transfer powers duly executed in blank by the registered owner of the
shares represented by such Certificates, with appropriate Medallion signature
guaranty ("Stock Powers"), to the Secured Party to be held by Xxxxxxx & Xxxxxx
LLP as agent for the Secured Party, or other manually acceptable third party
until the earlier of
(i) the termination of this Agreement or
(ii) foreclosure of Secured Party's security interests as provided
herein.
The Pledgor hereby appoints Xxxxxxx & Prager LLP as attorney-in-fact to execute
all documents and perform all acts as Secured Party may reasonably request in
order to perfect and maintain a valid security interest in the Collateral for
Secured Party.
4. Assignment. Only in connection with the transfer of the Notes in
accordance with their terms, a Secured Party may assign or transfer the whole or
any part of its security interest granted hereunder, and may transfer as
collateral security the whole or any part of Secured Party's security interest
in the Collateral. Any transferee of the Collateral shall be vested with all of
the rights and powers of Secured Party hereunder with respect to the Collateral.
5. Pledgor's Warranty. The Pledgor represents and warrants hereby to the
Secured Party as follows with respect to the Pledged Shares:
A. Title: (i) that upon transfer by Pledgor of the Pledgor's
Certificates and Stock Powers to Secured Party pursuant to this Agreement at
such time, if any, as the occurrence of a default in any of the Aggregate
Secured Obligations, including, but not limited to an Event of Default by the
Company under the Financing Agreement, the Notes or any of the other Related
Agreements, the Secured Party will have good title (both record and beneficial)
to the Pledged Shares;
(ii) that there are no restrictions upon transfer and
pledge of the Pledged Shares pursuant to the provisions of this Agreement except
the restrictions imposed by Rule 144 under the Securities Act of 1933;
(iii) that the Pledged Shares are free and clear of any
encumbrances of every nature whatsoever, such Pledgor is the sole owner of the
Pledged Shares, and such shares are duly authorized, validly issued, fully paid
and non-assessable, and
(iv) that such Pledgor has owned the Pledged Shares since
the date specified on Schedule 1 to this Agreement, and
B. Other: (i) that Pledgor has made necessary inquiries of the
Company and believes that the Company fully intends to fulfill and has the
capability of fulfilling the Secured Obligations to be performed by the Company
in accordance with the terms of the Notes, the Financing Agreements, and the
other Related Agreements,
(ii) that Pledgor is not acting, and has not agreed to
act, in any plan to sell or dispose of the pledged shares in a manner intended
to circumvent the registration requirements of the Securities Act of 1933, as
amended, or any applicable state law,
(iii) that Pledgor has been advised by counsel of the
elements of a bona-fide pledge for purposes of Rule 144(d)(3)(iv) under the
Securities Act of 1933, as amended, including the relevant Securities and
Exchange Commission ("SEC") interpretations and affirms that the pledge of
shares by the Pledgor pursuant to this Pledge Agreement will constitute a
bona-fide pledge of such shares for purposes of such Rule, and
(iv) that this Agreement constitutes a legal, valid and
binding obligation of Pledgor enforceable in accordance with its terms (except
as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, and similar laws, now or hereafter in
effect).
6. Pledgor's Covenant. Pledgor agrees not to grant or create, any
security interest, claim, lien, pledge or other encumbrance with respect to such
Pledgor's Pledged Shares or attempt to sell, transfer or otherwise dispose of
any of such shares until the Aggregate Secured Obligations have been paid in
full or otherwise fully performed.
7. Collection of Dividends and Interest. During the term of this
Agreement and so long as the Company is not in default under any of the Secured
Obligations and so long as Pledgor is not in default hereunder, Pledgor is
authorized to collect all
dividends, distributions, interest payments, and other amounts that may be,
or may become, due on any of the Collateral.
8. Voting Rights. During the term of this Agreement and until such
time as this Agreement has terminated or Secured Party has exercised its
rights under this Agreement to foreclose its security interest in the
Collateral, Pledgor shall have the right to exercise any voting rights
evidenced by, or relating to, the Collateral.
9. Warrants and Options. In the event that, during the term of this
Agreement, subscription, warrants, dividends, or any other rights or option
shall be issued in connection with the Collateral, such warrants, dividends,
rights and options shall be immediately delivered to Secured Party to be
held under the terms hereof in the same manner as the Collateral.
10. Preservation of the Value of the Collateral and Reimbursement of
Secured Party. Pledgor shall pay all taxes, charges, and assessments against
the Collateral and do all acts necessary to preserve and maintain the value
thereof. On failure of Pledgor so to do, Secured Party may make such
payments on account thereof as (in Secured Party's discretion) is deemed
desirable, and Pledgor shall reimburse Secured Party immediately on demand
for any and all such payments expended by Secured Party in enforcing,
collecting, and exercising its remedies hereunder.
11. Default and Remedies.
(a) For purposes of this Agreement, "Event of Default" shall
mean
(i) default in the performance by the Company or the
Pledgor of any of the Aggregate Secured Obligations
after the expiration, if such default is capable of
being cured, without cure following the expiration
of any applicable cure period, and if not so capable
of being cured, immediately; and
(ii) a breach by a Pledgor of any of his representations,
warrants, covenants or agreements in this Agreement.
(b) During the term of this Agreement, the Secured Party shall have the
following rights after any Event of Default and for so long as the Aggregate
Secured Obligations are not satisfied in full:
the rights and remedies provided by the Uniform Commercial Code as adopted
by the State of New York (as said law may at any time be amended), except
that the Secured Party waives any right to deficiency pursuant to Section
9-608 thereof or otherwise;
the right to receive and retain all dividends, payments and other
distributions of any kind upon any or all of the Pledged Shares as
additional Collateral;
the right to cause any or all of the Pledged Shares and all additional
Collateral to be transferred to its own name and have such transfer recorded in
any place or places deemed appropriate by Secured Party; and
the right to sell, at a public or private sale, the Collateral or any part
thereof for cash, upon credit or for future delivery, and at such price or
prices in accordance with the Uniform Commercial Code (as such law may be
amended from time to time) and any applicable state and federal securities laws.
Upon and such sale contemplated by the preceding provisions, Secured Party shall
have the right to deliver, assign and transfer to the purchaser thereof the
Collateral so sold. Secured Party shall give the Pledgor not less than ten (10)
days written notice of its intention to make any such sale. Any such sale shall
be held at such time or times during ordinary business hours and at such place
or places as Secured Party may fix in the notice of such sale. Secured Party may
adjourn or cancel any sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for the sale, and such sale may be
made at any time or place to which the same may be so adjourned. In case of any
sale of all or any part of the Collateral upon terms calling for payments in the
future, any Collateral so sold may be retained by Secured Party until the
selling price is paid by the purchaser thereof, but Secured Party shall incur no
liability in the case of the failure of such purchaser to take up and pay for
the Collateral so sold and, in the case of such failure, such Collateral may
again be sold upon like notice. Secured Party, however, instead of exercising
the power of sale herein conferred upon it, may proceed by a suit or suits at
law or in equity to foreclose the security interest and sell the Collateral, or
any portion thereof, under a judgment or decree of a court or courts of
competent jurisdiction, the Pledgor having been given due notice of all such
action. Secured Party shall incur no liability as a result of a sale of the
Collateral or any part thereof.
(c) Should the Secured Party exercise the rights set forth in clauses
(b)(ii) or (b)(iii) of this Section 11, the Secured Party so acting shall assign
to the Pledgor all of the rights and benefits of such Secured Party under the
Notes, the Financing Agreements, and the other Related Agreements; provided,
however, that the Secured Party shall make such assignment to the Pledgor
without recourse.
12. Waiver. Pledgor waives any right that it may have to require Secured
Party to proceed against any other person, or proceed against or exhaust any
other security, or pursue any other remedy Secured Party may have.
13. Term of Agreement. This Agreement shall continue in full force and
effect until all of the Aggregate Secured Obligations shall have been paid in
full or otherwise satisfied and the security interests are thereby released.
Upon termination of this Agreement, the Collateral shall be returned within five
(5) Business Days to Pledgor or counsel for the Company.
14. Company Acknowledgment, Representation and Agreement. The Company
acknowledges the terms of this Agreement and the pledge of the Pledged Shares
created thereby. The Company represents and warrants to the Secured Party that
the Pledged Shares are duly authorized, validly issued, fully paid and
non-assessable and that it will not permit the transfer of the Pledged Shares
except in accordance with this Agreement while the same is in effect.
15. General Provisions:
15.1 Binding Agreement. This Agreement shall be binding upon and
shall inure to the benefit of the successors and assigns of the respective
parties hereto.
15.2 Captions. The headings used in this Agreement are inserted for
reference purposes only and shall not be deemed to define, limit, extend,
describe, or affect in any way the meaning, scope or interpretation of any of
the terms or provisions of this Agreement or the intent hereof.
15.3 Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures upon any counterpart
were upon the same instrument. All signed counterparts shall be deemed to be one
original. This Agreement, once executed by a party, may be delivered to the
other parties hereto by telephone line facsimile transmission of a copy of this
Agreement bearing the signature of the parties so delivering this Agreement. A
facsimile transmission of this signed Agreement shall be legal and binding on
all parties hereto.
15.4 Further Assurances. The parties hereto agree that, from time
to time upon the written request of any party hereto, they will execute and
deliver such further documents and do such other acts and things as such party
may reasonably request in order fully to effect the purposes of this Agreement.
The Transfer Agent Instructions annexed hereto are deemed an integral part of
this Agreement.
15.5 Waiver of Breach. Any waiver by either party of any breach of
any kind or character whatsoever by the other, whether such be direct or
implied, shall not be construed as a continuing waiver of or consent to any
subsequent breach of this Agreement.
15.6 Cumulative Remedies. The rights and remedies of the parties
hereto shall be construed cumulatively, and none of such rights and remedies
shall be exclusive of, or in lieu or limitation of any other right, remedy, or
priority allowed by applicable law.
13.7 Amendment. This Agreement may be modified only in a written
document that refers to this Agreement and is executed by Secured Party, the
Pledgor and the Company.
15.8 Interpretation. This Agreement shall be interpreted, construed,
and enforced according to the substantive laws of the State of New York.
15.9 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York. Each of the parties
consents to the jurisdiction of the federal courts whose districts encompass any
part of the City of New York or the state courts of the State of New York
sitting in the City of New York in connection with any dispute arising under
this Agreement and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non conveniens, to the
bringing of any such proceeding in such jurisdictions.
15.10 Notice. Any notice or other communication required or permitted
to be given hereunder shall be effective upon receipt. Such notices may be sent
(i) in the United States mail, postage prepaid and certified, (ii) by express
courier with receipt, (iii) by facsimile transmission, with a copy subsequently
delivered as in (i) or (ii) above. Any such notice shall be addressed or
transmitted as follows:
If to Pledgor:
Intellect Capital Group, LLC
Tel: - -
Fax: - -
If to Secured Party:
Moonlight Holdings, Ltd.
With copies to: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Prager LLP
00 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
or such other address as may be designated in writing hereafter, in the same
manner, by such Person.
15.11 Acknowledgement by Pledgor. In the event that any provision of
the Financing Agreement, the Notes, any of the other Related Agreements or this
Agreement as applied to any party or circumstances shall be adjudged by a court
to be invalid or unenforceable, Pledgor acknowledges and agree that this
Agreement shall remain valid and enforceable in all respects against Pledgor.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK. THE SIGNATURES OF THE
PARTIES ARE ON THE NEXT PAGE.]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day,
month and year first above written.
SECURED PARTY:
MOONLIGHT HOLDINGS LTD.
By /s/ X.X Xxxxxxx
-----------------------------
X.X Xxxxxxx on behalf of
GRETTON SECRETARIAL SERVICES LTD
Director of MOONLIGHT HOLDINGS LTD
COMPANY:
BRIGHTCUBE. INC.
By: /s/ Xxxx Xxxxxx
----------------
Xxxx Xxxxxx, Chief Financial Officer
PLEDGOR:
INTELLECT CAPITAL GROUP, LLC
/s/ Xxxxxx X. Xxxxxx
--------------------
By: Xxxxxx X. Xxxxxx
Its:
SCHEDULE 1
The following shares are pledged hereunder as the Pledged Shares, each
certificate in the name of:
Holder's Name Certificate No. No. of Shares Date of
Acquisition
Intellect Capital Group, LLC
1. 2,000,000
2. 225,000
Total 2,225,000 shares
