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Exhibit 10.6
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Agreement") dated as of December 22,
2000 by _______________, an individual residing at _______________ (the
"Pledgor"), for the benefit of WATTAGE MONITOR INC., a Nevada corporation (the
"Pledgee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Stock Purchase Agreement among
Wattage Monitor Inc., Gerald R. Alderson, Vicki Center, Robert Forrest dated as
of the date hereof (the "Stock Purchase Agreement"), Pledgor has acquired
__________ shares of the Pledgee's common stock, par value of $.01 per share
(the "Securities").
WHEREAS, as consideration for the acquisition of the Pledged
Securities, the Pledgor has executed and delivered to the Pledgee, a secured
promissory note in the principal amount of ____________ Dollars ($______), dated
as of the date hereof (the "Promissory Note"); and
WHEREAS, the Pledgee requires, and the Pledgor is willing as a
condition to the consummation of the transaction contemplated by the Stock
Purchase Agreement and the Promissory Note to pledge to the Pledgee the
Securities (the "Pledged Securities") as security for the payment and
performance by Pledgor of all of Pledgor's obligations under the Promissory Note
(the "Obligations") by executing and delivering this Agreement.
NOW, THEREFORE, in consideration of the premises, and in order to
induce the Pledgee to accept the Promissory Note, the Pledgor does hereby agree
as follows:
Section 1. PLEDGE. The Pledgor hereby irrevocably and unconditionally
pledges to the Pledgee, and grants to the Pledgee a security interest in the
Pledged Securities.
Section 2. SECURITY FOR OBLIGATIONS. This Agreement secures the
Obligations and all obligations of the Pledgor now or hereafter existing under
this Agreement (all such obligations of the Pledgor being the "Obligations").
Section 3. DELIVERY OF PLEDGED SECURITIES. The Pledgor shall take all
necessary actions to ensure that all certificates or instruments representing or
evidencing the Pledged Securities shall be delivered to and held by the Pledgee
pursuant hereto and shall be in suitable form for transfer by delivery, or shall
be accompanied by duly executed, notarized instruments of transfer or assignment
in blank, all in form and substance
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satisfactory to the Pledgee. The Pledgee shall have the right, effective
immediately upon failure by the Pledgor to perform the Obligations, in its
discretion and without notice to the Pledgor, to transfer to or to register in
the name of the Pledgee or any of its nominees any or all of the Pledged
Securities. In addition, the Pledgee shall have the right at any time to
exchange certificates or instruments representing or evidencing Pledged
Securities for certificates or instruments of smaller or larger denominations.
Section 4. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and
warrants that:
(a) the pledge of the Pledged Securities pursuant to this
Agreement and delivery of certificates for the Pledged Securities creates a
valid and perfected first priority security interest in the Pledged Securities,
securing the Obligations;
(b) no authorization, approval, or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required either (i) for the pledge by the Pledgor of the Pledged Securities
pursuant to this Agreement or for the execution, delivery or performance of this
Agreement by the Pledgor or (ii) for the remedies in respect of the Pledged
Securities pursuant to this Agreement;
(c) the execution, delivery and performance of this Agreement
do not contravene any legal or contractual restriction binding on or affecting
the Pledgor or the Pledged Securities; and
(d) this Agreement has been duly executed and delivered by the
Pledgor and constitutes the legal, valid and binding obligation of the Pledgor,
enforceable against the Pledgor in accordance with its terms, subject to the
qualification, however, that the enforcement of the rights and remedies herein
is subject to bankruptcy and other similar laws of general application affecting
rights and remedies of creditors and that the remedy of specific performance or
of injunctive relief is subject to the discretion of the court before which any
proceedings therefor may be brought.
Section 5. FURTHER ASSURANCES. The Pledgor agrees that at any time and
from time to time, at the expense of the Pledgor, 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 Pledgee may request, in
order to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Pledgee to exercise and enforce its rights and
remedies hereunder with respect to any Pledged Securities.
Section 6. VOTING RIGHTS, DIVIDENDS, ETC.
(a) Unless the Pledgor has failed to perform any of the
Obligations:
(i) the Pledgor shall be entitled to exercise any and
all voting and other consensual rights pertaining to the
Pledged Securities or any part
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thereof for any purpose not inconsistent with this Agreement;
PROVIDED, HOWEVER, that, the Pledgor shall not exercise or
shall refrain from exercising any such right if, in the
Pledgee's judgment, such action would be inconsistent with or
violate any provisions of this Agreement;
(ii) the Pledgee shall exercise and deliver (or cause
to be executed or delivered) to the Pledgor all such proxies
and other instruments as the Pledgor may reasonably request
for the purpose of enabling the Pledgor to exercise the voting
and other rights which it is entitled to exercise pursuant to
subsection (i) above; and
(iii) the Pledgor shall be entitled to receive and
retain dividends, distributions or any other payments in
respect of the Pledged Securities; PROVIDED, HOWEVER, that,
any such dividend, distribution or other payment shall be
applied to any balance remaining due under the Promissory
Note.
(b) Upon the failure of the Pledgor to perform any of the
Obligations, all rights of the Pledgor to exercise the voting and other
consensual rights which it would otherwise be entitled to exercise pursuant to
Section 6(a)(i) hereof shall cease, and the Pledgor shall thereupon have no
further right to exercise such voting and other consensual rights.
Section 7. TRANSFERS AND OTHER LIENS; ADDITIONAL SHARES. Without
concurrently satisfying all the Obligations, the Pledgor agrees that it will not
(a) sell or otherwise dispose of, or grant any option with respect to, any of
the Pledged Securities, or (b) create or permit to exist any lien, security
interest, or other charge or encumbrance upon or with respect to any of the
Pledged Securities except for the security interest under this Agreement.
Section 8. PLEDGEE MAY PERFORM.
(a) If the Pledgor fails to perform any agreement contained
herein, the Pledgee may itself perform, or cause performance of, such agreement
and the expenses of the Pledgee incurred in connection therewith shall be
payable by the Pledgor under Section 10 hereof.
(b) The Pledgee shall have no responsibility for (i)
ascertaining or taking action with respect to conversions, exchanges, tenders or
other matters relative to any Pledged Securities, whether or not the Pledgee has
or is deemed to have knowledge of such matters, or (ii) taking any necessary
steps to preserve rights against any parties with respect to any Pledged
Securities.
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Section 9. REMEDIES UPON FAILURE TO PERFORM THE OBLIGATION.
(a) If the Pledgor shall have failed to perform any of the
Obligations, the Pledgee may exercise in respect of the Pledged Securities, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party upon default under the
Uniform Commercial Code in effect at that time, and the Pledgee may also,
without notice except as specified below, cancel the shares representing Pledged
Securities or sell the Pledged Securities at public or private sale, at any
exchange, broker's board or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Pledgee may deem commercially
reasonable. The Pledgor agrees that, to the extent notice of sale shall be
required by law, at least ten 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 Pledgee shall not be obligated to make
any sale of Pledged Securities regardless of notice of sale having been given.
The Pledgee 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.
(b) The Pledgor acknowledges that the Pledgee may be unable to
effect a public sale of some or all the Pledged Securities by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act") and applicable state securities laws, and may be compelled to
resort to one or more private sales thereof to a restricted group of purchasers
who will be obliged to agree, among other things, to acquire such securities for
their own account for investment and not with a view to the distribution and
resale thereof. The Pledgor acknowledges and agrees that any such private sale
may result in prices and other terms less favorable to the Pledgee than if such
sale were a public sale and, notwithstanding such circumstances, agrees that any
such private sale shall be deemed to have been made in a commercially reasonable
manner. The Pledgee shall be under no obligation to delay a sale of any of the
Pledged Securities for the period of time necessary to permit the registration
of such securities for public sale under the Securities Act, or under applicable
state securities laws, or to cause such registration for public sale to occur.
(c) All cash proceeds received by the Pledgee in respect of
any sale of, collection from, or other realization upon all or any part of the
Pledged Securities may, in the discretion of the Pledgee, be held by the Pledgee
as collateral for, and/or then or at any time thereafter applied (after payment
of any amounts payable to the Pledgee pursuant to Section 10 hereof) in whole or
in part by the Pledgee to the payment of the Promissory Note. Any surplus of
such cash or cash proceeds held by the Pledgee and remaining after payment in
full of the Promissory Note shall be paid over to the Pledgor or to whomsoever
may be lawfully entitled to receive such surplus.
Section 10. EXPENSES. The Pledgor shall indemnify and hold harmless the
Pledgee from and against all claims, damages, liabilities and expenses, and will
upon demand pay to the Pledgee the amount of any and all reasonable expenses,
including the
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reasonable fees and expenses of its counsel and of any experts and agents, which
the Pledgee may incur in connection with (a) the administration or enforcement
of this Agreement, (b) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Pledged Securities (c)
the exercise or enforcement of any of the rights of the Pledgee hereunder, or
(d) the failure by the Pledgor to perform or observe any of the provisions
hereof; provided that the Pledgor shall only indemnify and hold harmless the
Pledgee under this Section 10 to the extent such claims, damages, liabilities
and expenses are incurred due to Pledgor's gross negligence, bad faith or
willful misconduct.
Section 11. ADDRESSES FOR NOTICES.
Any notice, request or other communication under or with
respect to this Agreement shall be in writing and shall be deemed effective upon
receipt if delivered personally (including by fax if a confirmation copy of such
notice is delivered promptly by mail) or sent by registered or certified mail,
return receipt requested, postage prepaid, to either party at its address set
forth below:
If to Pledgor: __________________
__________________
__________________
If to Pledgee: Wattage Monitor Inc.
1100 Kietzke Lane
Reno, Nevada 89502
Attention:
with a copy to:
Willie E. Dennis, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
590 Madison Avenue
New York, New York 10022
Section 12. CONTINUING SECURITY INTEREST.
(a) Notwithstanding anything to the contrary herein contained,
this Agreement, the Obligations and the security interest granted hereunder
shall continue to be effective or reinstated, as the case may be, if at any time
any payment, or any part thereof, of any or all of the Obligations is rescinded,
invalidated, declared to be fraudulent or preferential or otherwise required to
be restored or returned by the Pledgee in connection with any bankruptcy,
reorganization or similar proceeding involving the Pledgor, if the proceeds of
any Pledged Securities are required to be returned by the Pledgee under any such
circumstances, or if the Pledgor elects to return any such payment
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or proceeds or any part thereof in its sole discretion, all as though such
payment had not been made or such proceeds not been received. Without limiting
the generality of the foregoing, if prior to any such rescission, invalidation,
declaration, restoration or return, this Agreement shall have been canceled or
surrendered or the security interest granted hereunder or any Pledged Securities
shall have been released or terminated in connection with such cancellation or
surrender, this Agreement, the security interest and Pledged Securities shall be
reinstated in full force and effect, and such prior cancellation or surrender
shall not diminish, discharge or otherwise affect the obligations of the Pledgor
in respect of the amount of the affected payment or application of proceeds, the
security interest or such Pledged Securities.
(b) This Agreement shall create a continuing security interest
in the Pledged Securities and, except as provided below, the security interest
granted hereunder and all agreements, made herein shall survive until, and this
Agreement shall terminate only upon, the indefeasible payment and performance in
full of the Obligations. Upon the indefeasible payment and performance of all of
the Obligations, the Pledgee shall deliver executed termination statements in
appropriate form and any other documents reasonably requested by the Pledgor to
evidence the termination of the security interest in the Pledged Securities. Any
purported termination of this Agreement shall not affect this Agreement in
relation to (i) any Obligation that was incurred or arose prior to the effective
time of such indefeasible payment and performance, (ii) any Obligation incurred
or arising after such effective time where such Obligation is incurred or arises
either pursuant to commitments existing at such effective time or incurred for
the purpose of protecting or enforcing rights against the Pledgor or any other
security given for the Obligations or any portion thereof or (iii) any renewals,
extensions, readvances, modifications or rearrangements of any of the foregoing.
Section 13. SECURITY INTEREST ABSOLUTE.
(a) All rights of the Pledgee and security interests
hereunder, and all obligations of the Pledgor hereunder, shall be absolute and
unconditional irrespective of:
(i) any lack of validity or enforceability of the
Promissory Note or any other agreement or instrument relating
thereto; or
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Promissory Note; or any other amendment or waiver of or any
consent to any departure from the Promissory Note or any other
agreement or instrument relating thereto; or
(iii) any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of or
consent to departure from all or any of the Promissory Note;
or
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(iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, a third
party pledgor.
(b) The Pledgor hereby waives:
(i) the right to require the Pledgee to proceed
against the Pledgor or any other person, to proceed against or
exhaust any other collateral or to pursue any other remedy in
the Pledgee's power whatsoever and the right to have the
property of any other person first applied to the discharge of
the Obligations;
(ii) the benefit of any statute of limitations
affecting the Obligations or its liability hereunder;
(iii) any requirement of marshaling or any other
principle of election of remedies;
(iv) except as otherwise specified herein, all
notices of any kind, including (A) notice of any action taken
or omitted by the Pledgee in reliance hereon, and (B) notice
of any action against the Pledgor, or any enforcement or other
action with respect to any Pledged Securities or other
collateral, or the assertion of any right of the Pledgee; and
(v) all defenses that at any time may be available
to the Pledgor by virtue of any valuation, stay, moratorium
or other law now or hereafter in effect.
Section 14. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to principles of conflicts of law.
Section 15. WAIVER. No failure or delay on the part of the Pledgee in
exercising any right, power or privilege under this Agreement and no course of
dealing between the Pledgor and the Pledgee shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, power or privilege
hereunder preclude any other or further notice or demand in similar or other
circumstances or constitute a waiver of the right of the Pledgee to any other or
further action in any circumstances without notice or demand.
Section 16. DESCRIPTIVE HEADINGS. The descriptive headings of the
several sections of this Agreement are inserted for convenience only and shall
not be deemed to affect the meaning or construction of any of the provisions
hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
PLEDGOR
____________________________
Name:
PLEDGEE
WATTAGE MONITOR INC.
By: ____________________________
Name:
Title:
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