PLEDGE AGREEMENT
This
Pledge Agreement (“Agreement”), dated September 13, 2005, is by and between
JUPITER GLOBAL HOLDINGS, CORP., a Nevada corporation ("Pledgor"), MACRO
COMMUNICATIONS, INC. a Georgia corporation (referred to as both "Pledgees"
and
“Corporation”) and XXXXXX XXXXXXX AND XXXX XXXXXXX
("Pledgeholders").
A.
Pledgor and Pledgees have entered into an Agreement and Plan of Acquisition
of
even date with this Agreement (the "Acquisition Agreement") whereby Pledgees
have agreed to issue and sell 4,000 shares of common stock (the "Stock")
in the
Pledgee, to Pledgor, WHICH CONSTITUTES 80% OF THE OUTSTANDING COMMON STOCK
OF
THE CORPORATION.
B.
As
consideration under the Acquisition
Agreement,
Pledgor
has agreed
to
deliver to Pledgees on the closing date as specified in the Acquisition
Agreement (the "Closing Date") a Promissory Note in the amount of One Million
Nine Hundred and Thirty Thousand Dollars ($1,930,000) (the "Promissory
Note").
C.
The
parties hereto desire to enter into this Agreement to secure the payment
of the
obligations to Pledgees arising under the Promissory Note, including any
interest, charges, expenses, costs, or attorneys fees associated with collection
of amounts due under the Promissory Note (the "Obligations").
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
set
forth
herein, the parties agree as follows:
I
TERMS
AND CONDITIONS
1.1
PLEDGE. Pledgor assigns and pledges the Stock (the "Collateral")
to
Pledgees in order to secure the Obligations.
(a)The
Pledgee will release to the Pledgor 2% or 80 shares of the Collateral for
each
$38,600.00 USD in payments made by the Pledgor towards the Promissory Note.
(b)
The
release of the Collateral will be governed by an Escrow Agreement governing
the
release of the Stock. The Escrow Agreement referred to herein is incorporated
by
reference as a part of the Acquisition Agreement.
1.2
DEFAULT EVENT. An event of default under this Agreement ("Default Event")
shall
be deemed to have occurred upon:
(a)an
event
of default under the terms of the Promissory Note, including the return of
any
check delivered at or prior to the Closing Date OR
AT
ANY
TIME SUBSEQUENT THERETO by Pledgor for insufficient funds;
(b)if
either
Pledgor or the Corporation becomes a debtor subject to a proceeding under
any
chapter of the Bankruptcy Act, or other federal or state insolvency or
bankruptcy act, which proceeding is not dismissed within thirty (30) days;
has
appointed a receiver or trustee to take possession of all or substantially
all
of its assets, which appointment is not terminated within thirty (30) days;
or
makes a general assignment for the benefit of its creditors, which assignment
is
not terminated within thirty (30) days; or
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(c)the
breach
or violation of any covenant or agreement contained in this Agreement which
is
not cured within thirty (30) days after written notice is given to Pledgor
(the
"Cure Period").
Upon
the
occurrence of a Default Event, the Pledgeholder is directed to deliver the
Collateral to the Pledgees unless, within the Cure Period, (a) Pledgeholder
is
prohibited by order of a court of competent jurisdiction from delivering
the
Collateral, or (b) unless the Pledgeholder receives written notice from Pledgor
stating that Pledgor has commenced an action in court
prohibiting
the delivery of the Collateral and a copy of the action is included with
the
notice, and an order is obtained from a court of competent jurisdiction
prohibiting the delivery of the Collateral within sixty (60) days from the
effective date of that notice. Pledgees' rights with respect to the Collateral
are set forth in Article IV.
1.3
TERMINATION OF AGREEMENT. This Agreement shall terminate upon the first to
occur
of the following:
(a)The
occurrence of a Default Event, in which case the Agreement shall terminate
upon
satisfaction of the Pledgeholder's obligations set forth in this Agreement;
or
(b)The
payment of all Obligations in full and delivery of the Collateral to the
Pledgor.
Pledgeholder
shall hold the Collateral until the Agreement is terminated. Except as provided
in section 1.2, Pledgeholder shall redeliver the Collateral to Pledgor upon
termination of this Agreement.
In
the
event Pledgeholder receives conflicting notices from Pledgor and Pledgees,
Pledgeholder may, in Pledgeholder's discretion, refuse to deliver the Collateral
and may apply to a court of competent jurisdiction for a determination of
the
rights of the parties regarding the Collateral.
1.4
DISPUTES CONCERNING DEFAULT EVENTS. In the event Pledgor is
notified
of a Default Event by Pledgees, Pledgor shall continue making payments under
the
Promissory Note. In lieu of paying Pledgees directly, Pledgor may, at its
option, make payments into an escrow account to be created by Pledgor at
an
acceptable escrow or trust account for the purpose of holding funds on deposit
until final determination of whether a Default Event has in fact occurred.
Pledgor waives any rights of offset against amounts that it owes under the
Promissory Note or this Agreement.
1.5
IRREVOCABLE STOCK POWER COUPLED WITH AN INTEREST. PLEDGOR AGREES TO SIGN
AN
IRREVOCABLE STOCK POWER COUPLED WITH AN INTEREST IN THE FORM ATTACHED AS
EXHIBIT
A (THE “STOCK POWER"). PLEDGEHOLDER WILL RETAIN POSSESSION OF THE STOCK POWER.
IN THE EVENT PLEDGEHOLDER IS NOTIFIED BY PLEDGEES OF THE OCCURRENCE OFA DEFAULT
EVENT. PLEDGEHOLDER IS AUTHORIZED TO DELIVER THE STOCK POWER TO
PLEDGEES.
II
DESIGNATION OF PLEDGEHOLDER
Pledgees
and Pledgor hereby designate XXXXXX XXXXXXX ("Pledgeholder") to
Act
as
Pledgeholder under the terms of this Agreement. In the event XXXXXX XXXXXXX
for
any reason fails to serve as Pledgeholder, XXXX XXXXXXX shall serve as
Pledgeholder or, if she fails to so serve, the Pledgeholder shall be The
Corporation
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III
INSTRUCTIONS TO PLEDGEHOLDER
Pledgees
and Pledgor hereby authorize and direct Pledgeholder as follows:
(1)To
hold and dispose of the Collateral AND THE STOCK POWER in
accordance
with the terms of this Agreement, and
(2)To
deliver the Collateral AND THE STOCK POWER in accordance with
Article
III.
PLEDGEES'
RIGHTS
Upon
the
occurrence of a Default Event, SUBJECT TO ANY RIGHTS TO CURE IN
SECTIONS
1.2(b) AND(c), then Pledgees shall have the right to take possession of and
sell
or otherwise dispose of the Collateral AND TO EXERCISE THE RIGHTS UNDER THE
STOCK POWER.
In
addition, Pledgees shall have all rights and remedies accorded under the
Nevada
Commercial Code. The remedies granted to Pledgees in this Agreement are not
exclusive and it is expressly understood that any remedies granted to Pledgees
pursuant to this Article are cumulative and in addition to remedies now or
hereafter permitted by law.
The
parties agree that the Obligations are recourse obligations of Pledgor, and
Pledgees are not limited to the Collateral for satisfaction of the Obligations
upon the occurrence of a Default Event.
Any
right
conferred upon Pledgees by this Agreement may be exercised by either of Pledgees
acting alone or by Pledgees acting jointly.
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V
INDEMNIFICATION OF PLEDGEHOLDER
Pledgees
and Pledgor, in consideration of Pledgeholder consenting to act hereunder,
hereby agree that so long as Pledgeholder acts in accordance with Article
III,
Pledgeholder shall in no event or circumstances be liable to them, or any
of
them, for any actions or inaction of Pledgeholder. Pledgees and Pledgor further
agree that should Pledgeholder incur any liability to any other person
or
entity as a result of his actions or inaction as Pledgeholder, Pledgees and
Pledgor, jointly and severally, shall indemnify Pledgeholder from any such
liability.
VI
COVENANTS
VII.
LIENS.
Pledgor
will not and will not allow Corporation to create, incur, assume or permit
to
exist any lien upon or with respect to any property or assets of any kind
(tangible or intangible) of the Corporation whether now owned or hereafter
acquired, or sell any such property or assets subject to an understanding
or
agreement, contingent or otherwise, to repurchase such property or assets
(including sales of accounts receivable or notes with recourse to the
Corporation) or assign any right to receive income, or file or permit the
filing
of any financing statement under the UCC as in effect in any applicable
jurisdiction or any other similar notice of lien under any similar recording
or
notice statute; provided that the provisions of this Section VI shall not
prevent the creation, incurrence, assumption or existence of the following
(with
such liens described below being herein referred to as "Permitted
liens"):
-
(a)liens
(other than any liens imposed by ERISA or pursuant to any environmental law)
for
taxes, assessments or governmental charges or levies not yet due or being
contested in good faith;
(b)liens
imposed by law securing the charges, claims, demands or levies of landlords,
carriers, warehousemen, mechanics, carriers and other like persons which
were
incurred in the ordinary course of business and which
(A)
do not,
individually or in the aggregate, materially detract from the value of the
property or assets of the Corporation or materially impair the use thereof
in
the operation of the business of the Corporation or
(B)which
are being
contested in good faith by appropriate proceedings diligently pursued, which
proceedings have the effect of preventing the forfeiture or sale of the property
or assets subject to such lien;
(c)liens
arising from judgments, decrees or attachments (or securing of appeal bonds
with
respect thereto)in circumstances not constituting an Event of Default under
Section 1.2;
(d)liens
(other than any liens imposed by ERISA or pursuant to any environmental law)
not
securing debt incurred or deposits made in the ordinary course of business
in
connection with workers' compensation, unemployment insurance and other types
of
social security or to secure the performance of tenders, statutory obligations,
surety bonds (other than appeal bonds), bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations incurred
in
the ordinary course of business;
(e)liens
existing on the Closing Date, in each case without giving effect to any
extensions or renewals thereof;
(f)
liens
arising from precautionary UCC financing statements regarding operating leases
permitted by this Agreement;
(g)
licenses,
sublicenses, leases or subleases granted to third persons in the ordinary
course
of business not interfering in any material respect with the business of
the
Corporation;
(h)any
interest or title of a licensor, lessor or sublessor under any lease permitted
by this Agreement;
(i)liens
created pursuant to one or more capital leases; provided that (A) each such
lien
serves only to secure the payment of debt arising under the related capital
lease and (B) the lien encumbering the asset giving rise to each such capital
lease does not encumber any other asset of the Corporation or its parent
or any
affiliate or subsidiary;
(j)any
purchase money security interest on any capital asset of the Corporation
if such
purchase money security interest attaches to such capital asset concurrently
with the acquisition thereof and if the debt secured by such purchase money
security interest does not exceed the lesser of the cost or fair market value
as
of the time of acquisition of the asset covered thereby; provided that no
such
purchase money security interest shall extend to or cover any property or
asset
of the Corporation other than the related asset; and
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(k)any
lien
arising out of the refinancing, extension, renewal or refunding of any debt
of
the Corporation secured by any lien permitted by this Section; provided that
such debt is not increased and is not secured by any additional
assets.
6.2
LIMITATION ON DEBT. Pledgor will not and will not allow the Corporation to
incur, create, assume or permit to exist any debt except:
(a)debt
of
the Corporation outstanding on the Closing Date, without giving effect to
any
subsequent extension, renewal or refinancing thereof;
(b)purchase
money debt secured by liens permitted by this Agreement;
(c)debt
of
the Corporation under (A) foreign currency exchange agreements entered into
to
manage foreign currency exchange risks and not for speculative purposes or
(B)
under raw materials hedging agreements entered into by the Corporation in
the
ordinary course of business;
(d)capital
lease obligations existing on the Closing Date, and capital lease obligations
incurred after the Closing Date, to the extent permitted by this
Agreement;
(e)debt
of
the Corporation representing a refinancing, replacement or refunding of debt
permitted by this Agreement; provided that the aggregate principal amount
of
such debt outstanding or available and the interest rate per annum payable
by
the Corporation with respect to such debt will not be increased, and the
weighted average remaining life to maturity of such debt will not be decreased
by reason of such refinancing, replacement or refunding; and
(f)debt
of
the Corporation not otherwise permitted by this Section incurred after the
Closing Date in an aggregate principal amount not to exceed $100,000 at any
time
outstanding; provided that (A) no Default Event shall have occurred and be
continuing immediately before and
immediately
after giving effect to such incurrence, and (B) such debt is
unsecured,
6.3
CAPITAL EXPENDITURES. Pledgor will not and will not allow the Corporation
to
make any new expenditures for fixed or capital assets (including, without
limitation, expenditures for maintenance and repairs which should be capitalized
in according with GAAP, including capital lease obligations) other than in
the
ordinary course of business.
6.4
INVESTMENTS; LINE OF BUSINESS. Pledgor agrees that:
(a)
The
Corporation will not hold, make or acquire any investment in any entity or
business, except:
(i)
the Corporation
may invest in cash and cash equivalents;
(ii)
the Corporation
may acquire and hold receivables owing to
it, if
created or acquired in the ordinary course of business and payable
or dischargeable in accordance with customary trade terms;
(iii)
the Corporation
may acquire and own investments (including
debt obligations) received in connection with the bankruptcy
or reorganization of suppliers and customers and in settlement
of delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business; and
(iv)
deposits made in
the ordinary course of business consistent with past practices to secure
the
performance of leases shall be permitted; provided that the Corporation may
not
make any investment in margin stock.
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(b)
The
Corporation will not make any acquisition of assets other than in the ordinary
course of business.
(c)
The
Corporation will not enter into any joint venture or partnership agreement
or
arrangement or any other agreement or arrangement with any entity or other
business involving the sharing of profits or joint or coordinated purchasing
or
distribution.
(d)
The
Corporation will not establish, create or acquire any subsidiary.
(e)
The
Corporation will not engage in any business other than the business in which
it
is engaged as of the Closing Date and activities directly related thereto
and
similar or related businesses.
6.5
CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. Pledgor agrees that:
(a)
The
Corporation will not wind up, liquidate or dissolve its affairs
or consolidate or merge with or into any other entity;
(b)
The
Corporation shall not make any disposition of its assets except:
(i)
dispositions of
inventory, or used, worn-out or surplus equipment,
in each case in the ordinary course of business of the Corporation;
and
(ii)
the sale of
equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly
applied to the purchase price of such replacement equipment.
6.6
DIVIDENDS. Pledgor agrees that the Corporation will not declare or pay
any
Dividends. 1.1
6.7
TRANSACTIONS WITH AFFILIATES. Pledgor agrees that the Corporation will
not,
directly or indirectly, pay any funds to or for the account of, make any
investment in, CONTRACT WITH, lease, sell, transfer or otherwise dispose
of any
assets, tangible or intangible, to, or participate in, or effect any transaction
with, any parent or affiliate of the Corporation; PROVIDED, HOWEVER, THAT
THE
CORPORATION MAY, PURSUANT TO THE DECISION OF ITS BOARD OF DIRECTORS, TRANSFER
TO
ITS PARENT FUNDS NOT IN EXCESS OF ITS NET INCOME AFTER TAXES. "NET INCOME
AFTER
TAXES" SHALL BE DETERMINED ON A QUARTERLY BASIS BY THE CORPORATION'S INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANT IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES. AT LEAST FIFTEEN (15) DAYS PRIOR TO ANY PROPOSED CASH TRANSFER
UNDER
THIS SECTION. SHAREHOLDERS
SHALL BE PROVIDED WITH WRITTEN NOTICE OF ANY PROPOSED CASH TRANSFER ALONG
WITH
THE CORPORATION'S FINANCIAL STATEMENT FOR THE QUARTER SUBSTANTIATING THE
NET
INCOME AFTER TAXES FOR THE QUARTER, AS CERTIFIED BY THE CORPORATION'S CERTIFIED
PUBLIC ACCOUNTANT.
6.8
AMENDMENTS OF ORGANIZATIONAL AND OTHER DOCUMENTS. Pledgor agrees that the
Corporation will not (i) amend, modify or supplement or consent to
any
amendment,
modification or supplement of its articles or certificate of incorporation,
its
bylaws, or other applicable organizational documents or any agreements entered
into by it with respect to its capital stock or other equity interests that
is
materially adverse to the Lenders or (ii) enter into any amendment, modification
or waiver that is adverse in any respect to the Pledgees to
any
material contract as in effect on the Closing Date. The Corporation will
promptly provide the Pledgees with copies of all amendments to the foregoing
documents and instruments as in effect as of the Closing Date.
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6.9
SALE
LEASEBACKS. Pledgor agrees that the Corporation will not, directly or
indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an operating lease or a capital lease,
of any
property (whether real or personal or mixed), whether now owned or hereafter
acquired, (i) which the Corporation has sold or transferred or is to sell
or
transfer to a third person or (ii) which the Corporation intends to use
for
substantially the same purpose as any other property which has been sold
or is
to be sold or transferred by the Corporation to another person in connection
with such lease.
6.10
NO
ADDITIONAL STOCK. PLEDGOR AGREES THAT THE CORPORATION WILL NOT ISSUE ANY
ADDITIONAL CAPITAL STOCK, COMMON OR PREFERRED, ANY CONVERTIBLE SECURITIES,
ANY
OPTIONS, OR OTHERWISE TAKE ANY ACTION THAT WOULD HAVE THE EFFECT OF DILUTING
THE
STOCK.
6.11
TERMINATION OF XXXX XXXXX. PLEDGOR AGREES THAT THE CORPORATION
WILL NOT TERMINATE XXXX XXXXX WITHOUT CAUSE OR PROVIDE GOOD REASON FOR HIS
TERMINATION OF EMPLOYMENT WITH THE CORPORATION, THE TERMS "CAUSE" AND “GOOD
REASON" HAVING THE MEANINGS ASCRIBED TO THEM UNDER THE EMPLOYMENT AGREEMENT
BETWEEN THE CORPORATION AND XXXX XXXXX BEING TO BE SIGNED WITHIN 30 DAYS
OF THIS
AGREEMENT.
6.12
DEBT
OBLIGATIONS. PLEDGOR AGREES THAT CORPORATION WILL REMAIN CURRENT ON ALL
CORPORATE DEBT OBLIGATIONS.
6.13
CASH
MANAGEMENT SUBJECT TO THE TERMS OF THIS AGREEMENT, THE CORPORATION’S CASH
MANAGEMENT SHALL BE SUBJECT TO THE DISCRETION OF THE CORPORATION’S BOARD OF
DIRECTORS; PROVIDED,HOWEVER, THAT ALL CHECKS, PAYMENTS, AND TRANSFERS SHALL
REQUIRE THE JOINDER OF XXXX XXXXX DURING THE TERM OF THIS
AGREEMENT.
6.14
INDEPENDENCE OF COVENANTS. All covenants contained herein shall be
given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that such action or condition would be
permitted by an exception to, or otherwise be within the limitations of,
another
covenant shall not avoid the occurrence of a Default Event if such action
is
taken or condition exists.
VII
GENERAL
PROVISIONS
7.1
ATTORNEYS' FEES. In the event of any controversy, claim or dispute between
the
parties to this Agreement, arising out of or relating to this Agreement or
the
breach of this Agreement, the prevailing party shall be entitled to recover
from
the losing party reasonable expenses, attorneys' fees, and costs.
7.2
NOTICES. All notices, requests, demands and other communications called for
or
contemplated hereunder shall be in writing and shall be deemed to have been
duly
given when mailed by United States or Canada certified or registered mail,
sent
by facsimile message or by nationally recognized overnight delivery service
addressed to the parties below, their successors-in-interest, or their permitted
assignees at the following addresses, or at such other addresses as the parties
may designate by written notice in the manner aforesaid. Any notice shall
be
deemed given upon the earlier of the date when received at, or the third
day
after the date when sent by registered or certified mail or the day after
the
date when sent by overnight delivery or facsimile to, the address or facsimile
number set forth below, unless such address or facsimile number is changed
by
notice to the other parties:
PLEDGEES/PLEDGEHOLDER:
MACRO COMMUNICATIONS, INC.
Xxxxx
000
0000 Xxxxxxxxx Xxxx Xxxxxx, Xxxxxxx, 00000
Facsimile:
000-000-0000
Attention:
Xxxx Xxxxx
PLEDGEES/PLEDGEHOLDER:
XXXXXX XXXXXXX AND XXXX XXXXXXX
Xxxxxx
Xxxxxxx and Xxxx Xxxxxxx x/x Xxxx Xxxxx
Xxxxx
000
2160 Satellite Blvd Duluth, Georgia, 30097
Facsimile:
000-000-0000
Attention:
Xxxx Xxxxx
PLEDGOR:
JUPITER GLOBAL HOLDINGS, CORP.
4TH
FLOOR 00
Xxxx 0xx
Xxxxxx
Xxxxxxxxx,
XX X0X 0X0 - Facsimile: 000-000-0000
Attention:
Xxxxx Xxxxx
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7.3
ASSIGNMENT. This Agreement shall be binding on and shall inure to the benefit
of
the parties, their respective heirs, legal representatives, successor and
assigns.
7.4
REMEDIES. None of the remedies provided for in this Agreement is intended
to be
exclusive, and each party shall have all other remedies now or hereafter
existing at law or in equity or by statute or otherwise, and the election
of any
one or more remedies shall not constitute a waiver of the right to
pursue
other available remedies.
7.5
GOVERNING LAW. This Agreement shall be governed by and construed in accordance
with the laws of the State of Nevada without giving effect to its conflicts
of
law principles. Pledgor agrees that any dispute or controversy arising out
of
this Agreement shall be adjudicated in a court located in Nevada, and hereby
submits to the exclusive jurisdiction of the courts of the
State
of Nevada located in Las Vegas, Nevada.
7.6
ENTIRE AGREEMENT. This Agreement and the documents specifically referred
to in
this Agreement or required to be delivered pursuant to the terms of this
Agreement represent the entire agreement of the parties hereto with respect
to
the subject matter hereof superseding all prior agreements, understandings,
discussions, negotiations and commitments of any kind. This Agreement may
not be
amended or supplemented, nor may any rights hereunder be waived, except in
a
writing signed by each of the parties affected thereby.
7.7
SEVERABILITY. In the event that any provision or any part of any provision
of
this Agreement is held to be illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall not affect the validity or enforceability
of any other provision or part hereof.
7.8
COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
IN
WITNESS WHEREOF, the parties have executed this Agreement in one or more
counterparts,
which, taken together constitute one agreement.
PLEDGEES:
MACRO
COMMUNICATIONS, INC ,
A
Nevada
corporation
By:
-------------------------------
PLEDGEHOLDERS:
XXXXXX
XXXXXXX
XXXX
XXXXXXX
PLEDGOR:
JUPITER
GLOBAL HOLDINGS, CORP.,
A
Nevada
corporation
By:
-------------------------------
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