Exhibit 10.2
PLEDGE AGREEMENT, dated as of August 3, 2004, by and between the persons
set forth on the signature page hereof jointly and severally (the "Pledgor"),
XXXXX XXXXXXXX (the "Pledgee") and XXXX X. XXXX, ESQ., as representative of the
Pledgor (the "Pledge Agent").
W I T N E S S E T H:
WHEREAS, as of even date herewith NextPhase Technologies, Inc., a
California corporation (the "Buyer") and Pledgee have entered into that certain
Agreement (the "Agreement") pursuant to which, among other things, the Buyer has
agreed to purchase 120,625 shares of common stock ($.001 par value per share) in
Edison Renewables, Inc., a Nevada corporation (the "Company") and deliver to the
Pledgee a promissory note in connection with the payment thereof (the
"Promissory Note").
WHEREAS, the Pledgee desires, and the Pledgor is willing, to secure
performance by Pledgor of its obligations under the Promissory Note;
WHEREAS, the Pledge Agent has agreed to act as pledge agent pursuant to the
terms and conditions hereinafter set forth;
WHEREAS, capitalized terms used and not otherwise defined herein shall have
the meaning ascribed to them in the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. The Pledgor hereby grants a security interest in, pledges and assigns
to, the Pledgee, as security for the performance by the Pledgor of its
obligations set forth in the Promissory Note, all of Pledgor's rights, title and
interest in and to the shares of common stock ($.001 per value per share) of the
Company which each Pledgor owns, each in the number of shares set forth on the
signature page hereof next to each Pledgor's respective name which the Pledgors
are aquiring pursuant to a Stock Exchange Agreement of even date between the
Company and the stockholders of NextPhase Technologies, Inc. (the "Pledged
Shares"). Each Pledgor's duties and obligations hereunder are joint and several.
The Pledgor shall, as soon as the transfer agent of the Company issues a stock
certificate representing the Pledged Shares in the Pledgor's name deliver to the
Pledge Agent, who the parties agree is acting as the representative of the
Pledgor and not as an independent third party, and the Pledge Agent hereby
agrees to accept receipt of, certificates evidencing the Pledged Shares
accompanied by appropriate stock powers endorsed by Pledgor (collectively, the
"Instruments"). The certificates representing the Pledged Shares are sometimes
hereinafter referred to as the "Pledged Certificates." Notwithstanding any
delivery of the Instruments to the Pledge Agent after the date hereof the
Pledged Shares shall be deemed pledged to secure the Promissory Note as of the
date hereof.
1
2. The Pledge Agent shall hold the Pledged Certificates as security for the
performance by the Pledgor of its payment obligations set forth in the
Promissory Note.
3. In the event that the Pledgor is in default of any payment obligation
under the Promissory Note and such default is not cured within applicable grace
and cure periods, the Pledgee may give to each of the Pledge Agent and the
Pledgor a written notice (the "Pledgee Release Notice") demanding release of the
Instruments from escrow.
4. Upon satisfaction of all payment obligations under the Promissory Note,
the Pledgor may give to each of the Pledge Agent and the Pledgee a written
notice demanding release of the Instruments from escrow.
5. Ten (10) days following receipt by the Pledge Agent of any written
notice of release from escrow, the Pledge Agent shall release the Instruments
held by it to the person giving such written notice, unless the Pledge Agent
shall have received a written notice of dispute: (i) from the Pledgor, if the
written notice of release was issued by the Pledgee; or (ii) from the Pledgee,
if the written notice of release was issued by the Pledgor.
6. If a written notice of dispute is received by the Pledge Agent pursuant
to Section 5 above, then the Pledge Agent shall not be required to release the
Instruments until the entry of a final non-appealable order by a court of
competent jurisdiction determining all of the outstanding issues concerning
ownership of the Instruments or until the receipt of a joint notice by the
Pledgor and the Pledgee or their respective successors.
7. During the period in which the Instruments are held in escrow, so long
(a) as the Pledgor is not in uncured default which default remains uncured
beyond the applicable grace period of any of the payment terms of the Promissory
Note and (b) the Pledgee has not delivered a Pledgee Release Notice to the
Pledge Agent, the Pledged Shares shall have all of the incidents of treasury
stock of the Pledgor.
8. The Pledge Agent shall not be responsible for the genuineness of any
certificate or signature and may rely conclusively upon and shall be protected
when acting upon any notice, affidavit, request, consent, instruction, check or
other instrument believed by it in good faith to be genuine or to be signed or
presented by the other person, or duly authorized or properly made. The Pledge
Agent shall have no responsibility except for the performance of its express
duties hereunder and no additional duties shall be inferred herefrom or implied
hereby. No amendment or modification of this Agreement or waiver of its terms
shall affect the right and duties of the Pledge Agent upon acceptance of the
Instruments unless the Pledge Agent's written consent therefor shall first have
been obtained. The Pledge Agent shall not be responsible or liable for any act
or omission on its part in the performance of its duties as Pledge Agent under
this Agreement, except as such act or omission constitutes bad faith, gross
negligence or fraud.
9. The Pledge Agent shall not be required to institute or defend any action
involving any matters referred to herein or which affects the Pledge Agent or
its duties or liabilities hereunder
2
unless or until requested to do so by any party to this Agreement and then only
upon receiving full indemnity, in character satisfactory to the Pledge Agent,
against any and all claims, liabilities, and expenses in relation thereto
(including any fees). In the event of any dispute among the parties hereto with
respect to the Pledge Agent or its duties: (i) the Pledge Agent may act or
refrain from acting in respect of any matter referred to herein in full reliance
upon and by and with the advice of counsel; or (ii) the Pledge Agent may refrain
from acting until required to do so by a final non-appealable order of a court
of competent jurisdiction. Notwithstanding the foregoing, the Pledge Agent may
at any time be relieved of its duties and obligations hereunder by depositing
the Instruments with a court of competent jurisdiction willing to accept the
same or upon thirty (30) days written notice of resignation given to the Pledgor
and Pledgee. In the event that the Pledge Agent resigns as pledge agent
hereunder, then the Pledgor and the Pledgee shall obtain a mutually satisfactory
substitute.
10. In the event of any change in the Pledged Shares during the term of
this Agreement, by reason of any stock dividend, stock split-up, reverse split,
recapitalization, combination, reclassification, exchange of shares or the like,
all new, substituted, or additional stock, or other securities, issued by reason
of any such change shall be delivered to and held by the Pledge Agent under the
terms of this Agreement in the same manner as the Pledged Shares originally
pledged hereunder.
11. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective legal representatives, successors and
assigns.
12. This Agreement contains the entire agreement and understanding between
the parties in respect of the subject matter hereof, and cannot be modified,
changed, discharged or terminated except by an instrument in writing, signed by
the party against whom enforcement of any modification, change, discharge or
termination is sought.
13. A waiver of the breach of any term or condition of this Agreement shall
not be deemed to constitute a waiver of any other breach of the same or any
other condition.
14. This Agreement will be construed and governed in accordance with the
laws of the State of Colorado, excluding choice of law rules thereof.
15. All notices or other communication required or permitted hereunder
shall be sufficiently given if delivered by hand, or sent by certified mail,
return receipt requested, postage prepaid, facsimile transmission or overnight
mail or courier, addressed as follows:
If to the Pledgor, at their respective addresses
set forth on the signature page hereof
If to the Pledgee, at:
Xxxxx Xxxxxxxx
3
0000 Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, Xxx Xxxx 00000
Telecopier Number: (000) 000-0000
If to the Pledge Agent:
Xxxx X. Xxxx, Esq.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telecopier Number: (000) 000-0000
16. In the event of any litigation or arbitration between the parties, the
prevailing party shall be entitled to its reasonable attorneys' fees and costs
associated with such action.
{Remainder of page intentionally left blank.}
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PLEDGOR:
Viper Networks, Inc.
By:/s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
----------------------------------
Title:Chairman
----------------------------------
Telecopier Number: (000) 000-0000
0000 Xxxxxxxxx Xxxxxx, #000
Xxx Xxxxx, Xxxxxxxxxx 00000
----------------------------
(Address)
4 MILLION
----------------------------
Number of Pledged Shares
/s/ Xxxxxxx Xxxxx
----------------------------
(Signature)
Xxxxxxx X.Xxxxx
----------------------------
(Name)
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
(Address)
Telecopier No. (000) 000-0000
2 MILLION
-----------------------------
Number of Pledged Shares
[Signatures continued on next page]
5
/s/ Xxxxx Xxxx
------------------------------
(Signature)
Xxxxx Xxxx
------------------------------
(Name)
00000 Xxx Xxxxxxxx
Xxxxxxxx, XX 00000
------------------------------
(Address)
Telecopier No. (000) 000-0000
2 million
-------------------------------
Number of Pledged Shares
/s/ Xxxx Xxxxxxx
-------------------------------
(Signature)
Xxxx Xxxxxxx
-------------------------------
(Name)
00000 Xxxxxx Xxxxx Xx. #X000
Xxxxx Xxxxx XX 00000
-------------------------------
(Address)
Telecopier No. (000) 000-0000
2 MILLION
-------------------------------
Number of Pledged Shares
/s/ Xxxxxxx Xxxxx
-------------------------------
(Signature)
Xxxxxxx Xxxxx
-------------------------------
(Name)
0000 Xxxxxxx Xxx #X
Xxxxxxx Xxxxx XX 00000
-------------------------------
(Address)
Telecopier Number: (000)000-0000
2 MILLION
--------------------------------
Number of Pledged Shares
[Signatures continued on next page]
6
PLEDGEE:
/s/ Xxxxx Xxxxxxxx
--------------------------------
XXXXX XXXXXXXX
PLEDGE AGENT:
/s/ Xxxx X. Xxxx
--------------------------------
XXXX X. XXXX, ESQ.
7
