Exhibit 10.35
PLEDGE AGREEMENT dated as of March
23, 2000, between XXXXXXX X. XXXXXX, an
individual (the "PLEDGOR"), and OPUS360
CORPORATION, a Delaware corporation (the
"PLEDGEE or ISSUER").
The Pledgor is the holder of an option (the "OPTION") for the purchase
of shares of the Common Stock, par value $0.001 per share, of the Issuer (the
"COMMON STOCK"), granted by the Issuer to the Pledgor pursuant to the terms and
conditions of the Amended and Restated Non-Statutory Option Agreement dated as
of February 2, 2000, between the Pledgor and the Issuer (as amended,
supplemented or otherwise modified from time to time in accordance with its
terms, the "OPTION AGREEMENT"). Capitalized terms used but not otherwise defined
herein have the respective meanings assigned to them in the Option Agreement.
Contemporaneously with the execution of this Agreement, the Pledgor
shall exercise the Option with respect to all of the Option 1 Shares covered
thereby, being 200,000 fully vested shares of Common Stock (the "PLEDGED
SHARES"), before giving effect to the pending three-for-two split of the Common
Stock approved by the Board of Directors of the Issuer prior to the date hereof,
for an aggregate purchase price of $800,000. In order to fund (i) $790,00 of the
aggregate purchase price of $800,000 being paid by the Pledgor in connection
with his exercise of the Option with respect to the Pledged Shares and (ii) the
Pledgor's payment of the federal and state withholding taxes (being $748,000)
arising as a result of his exercise of the Option, the Pledgor proposes to
borrow $1,538,000 (the "LOAN") from the Pledgee, against the issuance by the
Pledgor to the Pledgee of a secured, full-recourse, interest-bearing promissory
note dated the date hereof in the aggregate principal amount of the Loan (as
amended, supplemented, restated or otherwise modified from time to time in
accordance with its terms, the "NOTE").
As contemplated by the Note and to secure to the Pledgee the Pledgor's
due and punctual payment and performance of his obligations under the Note and
this Agreement, the Pledgor is executing and delivering this Agreement to the
Pledgee.
In consideration of the mutual covenants contained herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce the Issuer to make the Loan to the Pledgor,
the Pledgor and the Issuer hereby agree as follows:
1. PLEDGE.
The Pledgor hereby pledges, hypothecates, assigns, transfers, sets over
and delivers unto the Pledgee, and grants to the Pledgee a first priority,
perfected security interest in, all of the Pledgor's right, title and interest
in, to and under the following (collectively, the "PLEDGED COLLATERAL"): (a) all
of the Pledged Shares; (b) any cash or other property (including securities) at
any time and from time to time receivable or otherwise distributable in respect
of, in exchange for, or in substitution of, any of the Pledged Shares or other
property referred to in this CLAUSE (b); and (c) any and all products and
proceeds of any of the foregoing, together with any and all other rights,
titles, interests, powers, privileges and preferences pertaining to said
property; PROVIDED, HOWEVER, that the amount of any Distribution excluded,
pursuant to the Note, from a related Mandatory Prepayment (as such terms are
defined in the Note) shall not be so delivered.
2. OBLIGATIONS SECURED.
This Agreement is made, and the security interest created hereby is
granted to the Pledgee, to secure the due and punctual payment and performance
in full of the following (collectively, the "SECURED OBLIGATIONS"): (a) all
obligations of the Pledgor under this Agreement; (b) all obligations due and
payable under the Note; and (c) any reasonable costs or expenses incurred by the
Pledgee or the Pledgee's counsel in connection with the realization of the
security for which this Agreement provides, including, without limitation, any
reasonable costs or expenses of any proceedings to which this Agreement may give
rise.
3. REPRESENTATIONS AND WARRANTIES.
The Pledgor hereby represents and warrants to the Pledgee as follows:
(a) The Pledgor is, and will at all times continue to be, the legal and
beneficial owner of the Pledged Collateral and none of the Pledged Collateral is
subject to any Lien (other than the Liens created by this Agreement). No
financing statement under the Uniform Commercial Code of any jurisdiction which
names the Pledgor as debtor or covers any of the Pledged Collateral, or any
other notice filed in the public records indicating the existence of a lien
thereon, has been filed and is still effective in any state or other
jurisdiction, other than Uniform Commercial Code financing statements filed in
favor of the Pledgee, and the Pledgor has not signed any such financing
statement or notice or any security agreement authorizing the filing of any such
financing statement or notice, other than Uniform Commercial Code financing
statements filed in favor of the Pledgee.
(b) The Pledgor (i) has the power and authority to pledge the Pledged
Collateral in the manner hereby done or contemplated and (ii) will defend his
title or interest thereto or therein against any and all Liens (other than the
Liens created by this Agreement), however arising, of all persons or entities.
(c) No consent or approval of any Federal, state, local or foreign
government or any court of competent jurisdiction, administrative agency or
commission or other governmental authority ("GOVERNMENTAL ENTITY"), securities
exchange or any other person or entity was or is necessary to the validity of
the pledge effected hereby.
4. COVENANTS.
The Pledgor hereby unconditionally covenants and agrees that the
Pledgor will not create, assume, incur or permit or suffer to exist or to be
created, assumed or incurred, any Lien on any of the Pledged Collateral (or any
interest therein) (except for any Lien arising under this Agreement) and will
not sell, lease, assign, transfer or otherwise dispose of all or any portion of
the Pledged Collateral (or any interest therein).
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5. ADDITIONAL SHARES.
The Pledgor agrees that, until this Agreement has terminated in
accordance with its terms, any certificates, instruments or other documents
evidencing Pledged Collateral consisting of additional Securities of the Issuer
at any time issued to the Pledgor or otherwise acquired by the Pledgor in the
manner described in CLAUSE (b) of SECTION 1 shall be promptly delivered or
otherwise transferred to the Pledgee, such additional Securities being
additional Pledged Collateral and subject to the lien of, and the terms and
conditions of, this Agreement.
6. REGISTRATION IN NOMINEE NAME, DENOMINATIONS.
The Pledgee shall have the right (in its sole and absolute discretion)
to hold the Pledged Collateral in its own name as pledgee, the name of its
nominee (as Pledgee or as sub-agent) or the name of the Pledgor, endorsed or
assigned in blank or in favor of the Pledgee. The Pledgor will promptly give to
the Pledgee copies of any notices or other communications received by him with
respect to Pledged Collateral registered in the name of the Pledgor. The Pledgee
shall at all times have the right to exchange the certificates representing
Pledged Collateral for certificates of smaller or larger numbers of shares for
any purpose consistent with this Agreement.
7. VOTING RIGHTS; DIVIDENDS.
(a) So long as no Event of Default (as defined in the Note) shall have
occurred and be continuing, the Pledgor shall be entitled to exercise any and
all voting and consensual rights and powers accruing to an owner of the Pledged
Collateral or any part thereof for any purpose not inconsistent with the terms
and conditions of this Agreement or any agreement giving rise to or otherwise
relating to any of the Secured Obligations; PROVIDED, HOWEVER, that the Pledgor
shall not exercise, or refrain from exercising, any such right or power if any
such action could have a adverse effect on the value of such Pledged Collateral
in the sole judgment of the Pledgee. The Pledgor shall not be entitled to retain
and use any and all dividends or distributions or other payments paid on the
Pledged Collateral, including any and all stock and/or liquidating dividends,
other distributions in property, return of capital or other cash or non-cash
distributions made on or in respect of Pledged Collateral, whether resulting
from a subdivision, combination or reclassification of outstanding Securities of
the Issuer which are pledged hereunder or received in exchange for Pledged
Collateral or any part thereof or as a result of any merger, consolidation,
acquisition or other exchange of assets or on the liquidation, whether voluntary
or involuntary, of the Issuer, or otherwise, such property, if it is a cash
dividend or distribution or other cash payment, being a Mandatory Prepayment, or
otherwise being additional Pledged Collateral pledged hereunder, and, if
received by the Pledgor, shall forthwith be delivered to the Pledgee to be held
as Pledged Collateral subject to the terms and conditions of this Agreement and
the Note; PROVIDED, HOWEVER, that the amount of any Distribution excluded,
pursuant to the Note, from a related Mandatory Prepayment (as such terms are
defined in the Note) shall not be so delivered. The Pledgee agrees to execute
and deliver to the Pledgor, or cause to be executed and delivered to the
Pledgor, as appropriate, at the sole cost and expense of the Pledgor, all such
proxies, powers of attorney, dividend orders and other instruments as the
Pledgor may request for the purpose of enabling the Pledgor to exercise the
voting and/or consensual rights and powers which Pledgor is entitled to exercise
and/or to receive the dividends which Pledgor is
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authorized to retain. Without limiting the generality of the foregoing, the
Pledgor hereby grants a proxy (which shall be a proxy coupled with an interest)
to the Pledgee to vote the Pledged Collateral upon the occurrence and
continuation of an Event of Default.
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of the Pledgor to exercise the voting and/or consensual
rights and powers which Pledgor is entitled to exercise pursuant to SECTION 7(a)
shall cease, and all such rights thereupon shall become immediately vested in
the Pledgee, which shall have, to the extent permitted by any law, rule,
regulation, ordinance or code of any Governmental Entity (each, a "LAW"), the
sole and exclusive right and authority to exercise such voting and/or consensual
rights and powers which the Pledgor shall otherwise be entitled to exercise
pursuant to SECTION 7(a). Any and all money and other property paid over to
or received by the Pledgee pursuant to the provisions of this SECTION 7(b)
shall be retained by the Pledgee as additional collateral hereunder and shall
be applied in accordance with the provisions of SECTION 9. If the Pledgor
shall receive any dividends or other property which he is not entitled to
receive under this SECTION 7, the Pledgor shall hold the same in trust for
the Pledgee, without commingling the same with other funds or property of or
held by the Pledgor, and shall promptly deliver the same to the Pledgee upon
receipt by the Pledgor in the identical form received, together with any
necessary endorsements.
8. REMEDIES UPON EVENT OF DEFAULT.
(a) In addition to any right or remedy that the Pledgee may have under
the Note, any other loan documents or otherwise under applicable Law, if an
Event of Default shall have occurred and be continuing, the Pledgee may exercise
any and all of the rights and remedies of a secured party under the Uniform
Commercial Code as in effect in any applicable jurisdiction (the "CODE") and may
otherwise sell, assign, transfer, endorse and deliver the whole or, from time to
time, any part of the Pledged Collateral at a public or private sale or on any
securities exchange, for cash, upon credit or for other property, for immediate
or future delivery, and for such price or prices and on such terms as the
Pledgee in its discretion shall deem appropriate. The Pledgee shall be
authorized at any sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to persons or entities who will represent and
agree that they are purchasing the Pledged Collateral for their own account in
compliance with the Securities Act and upon consummation of any such sale the
Pledgee shall have the right to assign, transfer, endorse and deliver to the
purchaser or purchasers thereof the Pledged Collateral so sold. Each purchaser
at any sale of Pledged Collateral shall take and hold the property sold
absolutely free from any claim or right on the part of the Pledgor, and the
Pledgor hereby waives (to the fullest extent permitted by applicable Law) all
rights of redemption, stay and/or appraisal which the Pledgor now has or may at
any time in the future have under any applicable Law now existing or hereafter
enacted. The Pledgor agrees that, to the extent notice of sale shall be required
by applicable Law, at least ten days' prior written 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, but notice given in any other
reasonable manner or at any other reasonable time shall constitute reasonable
notification. Such notice, in case of public sale, shall state the time and
place for such sale, and, in the case of sale on a securities exchange, shall
state the exchange on which such sale is to be made and the day on which the
Pledged Collateral, or portion thereof, will first be offered for sale at such
exchange. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as the Pledgee may fix and
shall
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state in the notice or publication (if any) of such sale. At any such sale, the
Pledged Collateral, or portion thereof to be sold, may be sold in one lot as an
entirety or in separate parcels, as the Pledgee may determine in its sole and
absolute discretion. The Pledgee shall not be obligated to make any sale of the
Pledged Collateral if it shall determine not to do so regardless of the fact
that notice of sale of the Pledged Collateral may have been given. The Pledgee
may, without notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. In case the sale of all or any
part of the Pledged Collateral is made on credit or for future delivery, the
Pledged Collateral so sold may be retained by the Pledgee until the sale price
is paid by the purchaser or purchasers thereof, but the Pledgee shall not incur
any liability to the Pledgor in case any such purchaser or purchasers shall fail
to take up and pay for the Pledged Collateral so sold and, in case of any such
failure, such Pledged Collateral may be sold again upon like notice. At any
public sale made pursuant to this Agreement, the Pledgee, to the extent
permitted by applicable Law, may bid for or purchase, free from any right of
redemption, stay and/or appraisal on the part of the Pledgor (all said rights
being also hereby waived and released to the extent permitted by applicable
Law), any part of or all the Pledged Collateral offered for sale and may make
payment on account thereof by using any claim then due and payable to the
Pledgee from the Pledgor as a credit against the purchase price, and the Pledgee
may, upon compliance with the terms of sale and to the extent permitted by
applicable Law, hold, retain and dispose of such property without further
accountability to the Pledgor therefor. For purposes hereof, a written agreement
to purchase all or any part of the Pledged Collateral shall be treated as a sale
thereof; the Pledgee shall be free to carry out such sale pursuant to such
agreement; and the Pledgor shall not be entitled to the return of any Pledged
Collateral subject thereto, notwithstanding the fact that after the Pledgee
shall have entered into such an agreement the Secured Obligations may have been
paid in full as herein provided. The Pledgor hereby waives any right to require
any marshaling of assets and any similar right.
(b) If an Event of Default shall have occurred and be continuing, in
addition to exercising the power of sale herein conferred upon it, the Pledgee
shall also have the option to proceed by suit or suits at law or in equity to
foreclose this Agreement and sell the Pledged Collateral or any portion thereof
pursuant to judgment or decree of a court or courts having competent
jurisdiction.
(c) The rights and remedies of the Pledgee under this Agreement are
cumulative and not exclusive of any rights or remedies which it would otherwise
have.
9. APPLICATION OF PROCEEDS OF SALE AND CASH.
The proceeds of any sale of the whole or any part of the Pledged
Collateral, together with any other moneys held by the Pledgee under the
provisions of this Agreement, shall be applied by the Pledgee in the following
order:
(a) FIRST: to the payment of all costs and expenses incurred in
connection with such sale or other realization, including reasonable attorneys'
fees incurred if the Pledgee endeavored to collect the Secured Obligations by or
through an attorney at law;
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(b) SECOND: to the payment of the interest due upon any of the Secured
Obligations, in any order which the Pledgee may elect;
(c) THIRD: to the payment of the principal due upon any of the Secured
Obligations in any order which the Pledgee may elect; and
(d) FOURTH: the balance (if any) of such proceeds shall be paid to the
Pledgor or to whomsoever may be legally entitled thereto.
10. PLEDGEE APPOINTED ATTORNEY-IN-FACT.
The Pledgor hereby constitutes and appoints the Pledgee as the
attorney-in-fact of the Pledgor with full power of substitution either in the
Pledgee's name or in the name of the Pledgor to do any of the following: (a) to
perform any obligation of the Pledgor hereunder in the Pledgor's name or
otherwise; (b) to ask for, demand, xxx for, collect, receive, receipt and give
acceptance for any and all moneys due or to become due under and by virtue of
any Pledged Collateral; (c) to prepare, execute, file, record or deliver
notices, assignments, financing statements, continuation statements,
applications for registration or like papers to perfect, preserve or release the
Pledgee's security interest in the Pledged Collateral or any of the documents,
instruments, certificates and agreements described herein; (d) to verify facts
concerning the Pledged Collateral in its own name or a fictitious name; (e) to
endorse checks, drafts, orders and other instruments for the payment of money
payable to the Pledgor, representing any interest or dividend or other
distribution payable in respect of the Pledged Collateral or any part thereof or
on account thereof and to give full discharge for the same; (f) to exercise all
rights, powers and remedies which the Pledgor would have, but for this
Agreement, under the Pledged Collateral; and (g) to carry out the provisions of
this Agreement and to take any action and execute any instrument which the
Pledgee may deem necessary or advisable to accomplish the purposes hereof, and
to do all acts and things and execute all documents in the name of the Pledgor
or otherwise, deemed by the Pledgee as necessary, proper and convenient in
connection with the preservation, perfection or enforcement of its rights
hereunder. Nothing herein contained shall be construed as requiring or
obligating the Pledgee to make any commitment or to make any inquiry as to the
nature or sufficiency of any payment received by it, or to present or file any
claim or notice, or to take any action with respect to the Pledged Collateral or
any part thereof or the moneys due or to become due in respect thereof or any
property covered thereby, and no action taken by the Pledgee or omitted to be
taken with respect to the Pledged Collateral or any part thereof shall give rise
to any defense, counterclaim or offset in favor of the Pledgor or to any claim
or action against the Pledgee. The power of attorney granted herein is
irrevocable and coupled with an interest.
11. FURTHER ASSURANCES.
The Pledgor shall, at his sole cost and expense, take all action that
may be necessary or desirable in the Pledgee's sole discretion, so as at all
times to maintain the validity, perfection, enforceability and priority of the
Pledgee's security interest in the Pledged Collateral, or to enable the Pledgee
to exercise or enforce its rights hereunder, including, without limitation, (a)
delivering to the Pledgee, endorsed or accompanied by such instruments of
assignment as the Pledgee may specify, any and all chattel paper, instruments,
letters of credit and all other advices
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of guaranty and documents evidencing or forming a part of the Pledged Collateral
and (b) executing and delivering financing statements, pledges, designations,
notices and assignments, in each case in form and substance satisfactory to the
Pledgee, relating to the creation, validity, perfection, priority or
continuation of the security interest granted hereunder. The Pledgor agrees to
take, and authorizes the Pledgee to take on the Pledgor's behalf, any or all of
the following actions with respect to any Pledged Collateral as the Pledgee
shall deem necessary to perfect the security interest and pledge created hereby
or to enable the Pledgee to enforce its rights and remedies hereunder: (i) to
register in the name of the Pledgee any Pledged Collateral in certificated or
uncertificated form; (ii) to endorse in the name of the Pledgee any Pledged
Collateral issued in certificated form; and (iii) by book entry or otherwise,
identify as belonging to the Pledgee a quantity of securities that constitutes
all or part of the Pledged Collateral registered in the name of the Pledgee.
Notwithstanding the foregoing the Pledgor agrees that Pledged Collateral which
is not in certificated form or is otherwise in book-entry form shall be held for
the account of the Pledgee. The Pledgor hereby authorizes the Pledgee to execute
and file in all necessary and appropriate jurisdictions (as determined by the
Pledgee) one or more financing or continuation statements (or any other document
or instrument referred to in the immediately preceding CLAUSE (b)) in the name
of the Pledgor and to sign the Pledgor's name thereto. The Pledgor authorizes
the Pledgee to file any such financing statement, document or instrument without
the signature of the Pledgor to the extent permitted by applicable Law. To the
extent permitted by applicable Law, a carbon, photographic or other reproduction
of this Agreement or any financing statement is sufficient as a financing
statement. Any property comprising part of the Pledged Collateral required to be
delivered to the Pledgee pursuant to this Pledge Agreement shall be accompanied
by proper instruments of assignment duly executed by the Pledgor and by such
other instruments or documents as the Pledgee may reasonably request. In the
event any Pledged Collateral in certificated form becomes eligible for
book-entry treatment, the Pledgor will use its best efforts to effectuate such
book-entry treatment with respect to such Pledged Collateral.
12. SECURITIES LAWS.
In view of the position of the Pledgor in relation to the Pledged
Collateral, or because of other current or future circumstances, a question may
arise under the Securities Act, as now or hereafter in effect, or any similar
applicable Law (whether foreign or domestic) hereafter enacted analogous in
purpose or effect (such Law and any such similar applicable Law as from time to
time in effect being called the "SECURITIES LAWS") with respect to any
disposition of the Pledged Collateral permitted hereunder. The Pledgor
understands that compliance with the Securities Laws might very strictly limit
the course of conduct of the Pledgee if the Pledgee were to attempt to dispose
of all or any part of the Pledged Collateral in accordance with the terms
hereof, and might also limit the extent to which or the manner in which any
subsequent transferee of any Pledged Collateral could dispose of the same.
Similarly, there may be other legal restrictions or limitations affecting the
Pledgee in any attempt to dispose of all or part of the Pledged Collateral in
accordance with the terms hereof under applicable "BLUE SKY" or other state
securities Laws or similar applicable Law analogous in purpose or effect. The
Pledgor recognizes that in light of
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the foregoing restrictions and limitations the Pledgee may, with respect to any
sale of the Pledged Collateral, limit the purchasers to those who will agree,
among other things, to acquire such Pledged Collateral for their own account,
for investment, and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that in light of the foregoing restrictions and
limitations, the Pledgee, in its sole and absolute discretion, may, in
accordance with applicable Law, (a) proceed to make such a sale whether or not a
registration statement for the purpose of registering such Pledged Collateral or
part thereof shall have been filed under the Securities Laws and (b) approach
and negotiate with a single potential purchaser to effect such sale. The Pledgor
acknowledges and agrees that any such sale might result in prices and other
terms less favorable to the seller than if such sale were a public sale without
such restrictions. In the event of any such sale, the Pledgee shall incur no
responsibility or liability for selling all or any part of the Pledged
Collateral in accordance with the terms hereof at a price that the Pledgee may
in good xxxxx xxxx reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might have been realized if the
sale were deferred until after registration as aforesaid. The provisions of this
SECTION 12 will apply notwithstanding the existence of public or private market
upon which the quotations or sales prices may exceed substantially the price at
which the Pledgee sells.
13. CONTINUING SECURITY INTEREST.
This Agreement shall create a continuing security interest in the
Pledged Collateral and shall remain in full force and effect until it terminates
in accordance with its terms. The Pledgor and the Pledgee hereby agree that the
security interest created by this Agreement in the Pledged Collateral shall not
terminate and shall continue and remain in full force and effect notwithstanding
the transfer to the Pledgee of a portion of the Pledged Collateral.
14. SECURITY INTEREST ABSOLUTE.
All rights of the Pledgee hereunder, the grant of a security interest
in the Pledged Collateral and all obligations of the Pledgor hereunder, shall be
absolute and unconditional irrespective of (a) any lack of validity or
enforceability of the Note or any other loan document, any agreement with
respect to any of the Secured Obligations or any other agreement or instrument
relating to any of the foregoing, (b) any change in the time, manner or place of
the payment of, or in any other term of, all or any of the Secured Obligations,
or any other amendment or waiver of or any consent to any departure from the
Note, any other loan document, or any other agreement or instrument relating to
any of the foregoing, (c) any exchange, release or nonperfection of any other
collateral, or any release or amendment or waiver of or consent to or departure
from any guaranty, for all or any of the Secured Obligations or (d) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Pledgor in respect of the Secured Obligations or in respect of
this Agreement (other than the indefeasible payment in full of all the Secured
Obligations).
15. NO WAIVER.
Neither the failure on the part of the Pledgee to exercise, nor the
delay on its part in exercising, any right, power or remedy hereunder, nor any
course of dealing between the Pledgee and the Pledgor, shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power, or
remedy hereunder preclude any other or the further exercise thereof or the
exercise of any other right, power or remedy.
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16. NOTICES.
All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and
shall be deemed to have been given or made when (i) delivered personally to the
recipient, (ii) transmitted by facsimile or electronic mail (with hard copy sent
to the recipient by reputable overnight courier service (charges prepaid) that
same day and, in the latter case, with receipt acknowledged by the recipient by
return electronic mail) if faxed or e-mailed before 5:00 p.m. (New York, New
York time) on a Business Day, and otherwise on the next Business Day, (iii) two
Business Days after being sent to the recipient by reputable overnight courier
service (charges prepaid), or (iv) five Business Days after being sent to the
recipient by registered or certified mail (postage prepaid and return receipt
requested). Such notices, demands and other communications shall be sent to the
address for such recipient as set forth below (or to such other address or to
the attention of such other person as the recipient party has specified by like
notice):
(i) if to the Issuer or Pledgee, to
Opus360 Corporation
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary of the Company
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail:
with a copy (which shall not constitute notice) to:
Opus360 Corporation
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail:
(ii) if to the Pledgor, to
Xxxxxxx X. Xxxxxx
0 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail: xxxxxxx@xxxx000.xxx
with a copy (which shall not constitute notice) to:
Xxxxxx, Xxxxxxx, Xxxxxxxxx & Green, P.C.
00 Xxxx Xxxxxx
0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx-Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail: xxxx-xxxxx@xxxx.xxx
As used in this Agreement, the term "BUSINESS DAY" means any day, other than a
Saturday, Sunday or a day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to close.
17. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE DOMESTIC LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE
OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK.
18. AMENDMENTS.
No amendment or waiver of any provision of this Agreement nor 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 parties hereto, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
19. BINDING AGREEMENT.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that the
Pledgor shall not be permitted to assign this Agreement or any interest herein
or in the Pledged Collateral, or any part thereof, or any cash or property held
by the Pledgee as collateral under this Agreement.
20. TERMINATION.
Upon payment in full of all of the Secured Obligations, this Agreement
shall terminate. The release of Pledged Collateral or reassignment of rights to
the Pledgor upon the termination of this Agreement shall be without recourse to
or warranty by the Pledgee and shall be made by the Pledgee at the sole cost and
expense of the Pledgor, except to the extent such costs and expenses are the
result of Pledgee's bad faith or gross negligence. Upon the release of Pledged
Collateral or reassignment of rights to the Pledgor, the Pledgee will, at the
sole cost and expense of the Pledgor, except to the extent such costs and
expenses are the result of Pledgee's bad faith or gross negligence, execute and
deliver to the Pledgor such documents as the Pledgor shall reasonably request to
evidence such release and reassignment and shall deliver to the Pledgor all
Pledged Collateral so released then in its possession and not applied in
satisfaction of the Secured Obligations.
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21. SEVERABILITY.
In case any provision of this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
22. INTERPRETATION; CONSTRUCTION
The headings contained in this Agreement and in any table of contents
to this Agreement are for convenience of reference only and shall not govern or
affect in any way the meaning or interpretation of any of the terms or
provisions of this Agreement. Except when the context requires otherwise, any
reference in this Agreement to any Article, Section or clause shall be to the
Articles, Sections and clauses of this Agreement. The words "INCLUDE,"
"INCLUDES" and "INCLUDING" are deemed to be followed by the phrase "WITHOUT
LIMITATION." Any reference to the masculine, feminine or neuter gender shall
include such other genders and any reference to the singular or plural shall
include the other, in each case unless the context otherwise requires. Where
specific language is used to clarify by example a general statement contained
herein, such specific language shall not be deemed to modify, limit or restrict
in any manner the construction of the general statement to which it relates. The
language used in this Agreement has been chosen by the parties to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
23. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute but one agreement.
This Agreement, the agreements referred to herein, and each other agreement or
instrument entered into in connection herewith or therewith or contemplated
hereby or thereby, and any amendments hereto or thereto, to the extent signed
and delivered by means of a facsimile machine, shall be treated in all manner
and respects as an original agreement or instrument and shall be considered to
have the same binding legal effect as if it were the original signed version
thereof delivered in person.
* * * *
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IN WITNESS WHEREOF, the Pledgor and the Pledgee have executed this
Pledge Agreement as of the date first written above.
PLEDGOR:
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx
PLEDGEE:
OPUS360 CORPORATION
By: /s/ Xxx X. Xxxxxxxx
-------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Chief Executive Officer
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