EXHIBIT E
PLEDGE
AGREEMENT
THIS PLEDGE
AGREEMENT ("
Agreement "), dated as of _________, 2009, is executed by
and among (A) Trestle Holdings, Inc. , a Delaware
corporation (“ Trestle ”); (B) MoqiZone
Holdings Limited , a Cayman Island corporation (“
MoqiZone Cayman ”); (C) MobiZone Holdings
Limited , a Hong Kong corporation (“ MobiZone Hong
Kong ”); (D) Shanghai MoqiZone Information Technology
Company Limited, a corporation organized under the laws of the
People’s Republic of China (“ MoqiZone ”);
(E) Leser Hunter Taubman & Taubman, a law firm formed
under the laws of the State of New York and having an office at 17
State Street, 20 th floor, New York, New York 10004 (the “
Collateral Agent ” or “LHTT”); and (F)
those individuals, corporations, limited liability companies, or
other entities who have executed this Agreement on the signature
page hereof (collectively, the “ Investors ” or
the “ Secured Parties ”).
Trestle,
MoqiZone Cayman and MobiZone Hong Kong are hereinafter sometimes
individually referred to as a “ Pledgor ” and
collectively referred to as the “ Pledgors
.” Trestle, MoqiZone Cayman, MobiZone Hong Kong
and MoqiZone and the Investors are hereinafter sometimes
collectively referred to as the “ Business Parties
.”
WITNESSETH
:
WHEREAS, Trestle is the owner of 100% of the
share capital of MoqiZone Cayman (the “ MoqiZone Cayman
Shares ”), MoqiZone Cayman is the owner of 100% of the
share capital of MobiZone Hong Kong (the “ MobiZone Hong
Kong Shares ”), and MobiZone Hong Kong is the owner of
100% of the share capital of MoqiZone (the “ MoqiZone
Shares ”);
WHEREAS, pursuant to the terms of a Securities
Purchase Agreement, dated as of June 1, 2009 (the “
Purchase Agreement ”), among the Business Parties,
certain other Persons and the “Investors” (as defined
therein), such Investors have purchased securities of MobiZone Hong
Kong and Trestle, including 8% exchangeable notes of MobiZone Hong
Kong, due March 31, 2011 (the “ Notes
”);
WHEREAS, by their stated terms, upon
consummation of (a) the “Trestle Reverse Split” (as
defined in the Purchase Agreement), (b) the filing of an amended
and restated certificate of incorporation of Trestle and the Series
A Preferred Stock Certificate of Designations (as defined) of
Trestle with the Secretary of State of the State of Delaware, (c)
the payment of accrued interest on the Notes, and (d) the delivery
to each Investor of their respective rights to shares of Series A
Preferred Stock, all as required under the Purchase Agreement
(collectively, the “ Performance Obligations ”),
such Notes shall be automatically cancelled and exchanged for a
like Stated Value of shares of Series A voting convertible
preferred stock of Trestle (the “ Series A Preferred
Stock ”);
WHEREAS, as collateral to secure performance of
their respective Performance Obligations under the Purchase
Agreement, each of Trestle, MoqiZone Cayman and MoqiZone have each
guaranteed payment of the Notes and the performance by the Business
Parties of their respective Performance Obligations, all pursuant
to a guaranty agreement, dated of even date herewith (the “
Guaranty ”); and
WHEREAS, in order to secure the payment of the
Notes and performance of the Performance Obligations, (a) Trestle
has agreed to pledge to the Investors the MoqiZone Cayman Shares,
(b) MoqiZone Cayman has agreed to pledge to the Investors, the
MobiZone Hong Kong Shares, and (c) MobiZone Hong Kong has agreed to
pledge to the Investors the MoqiZone Shares, all pursuant to this
Agreement;
NOW, THEREFORE,
in consideration of the premises
and of the mutual covenants set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
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Pledge of
the Pledged Shares .
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(a) Each
of the Pledgors do hereby pledge, as pledgors, to the
Investors, as pledgee, and grants to the Investors a first priority
lien on and security interest in and to (i) all of Trestle’s
right, title and interest in and to all of the MoqiZone Cayman
Shares, (ii) all of MoqiZone Cayman’s right, title and
interest in and to all of the MobiZone Hong Kong Shares, and (iii)
all of MobiZone Hong Kong’s right, title and interest in and
to all of the MoqiZone Shares (collectively, the “
Shares ”), together with all proceeds from the sale of
the Shares, all dividends paid in respect of the Shares and any
property or securities delivered to the holder of the Shares in
respect thereof in the event of a merger or takeover of any of the
Pledgors by a third party (collectively, the " Pledged
Collateral ").
(b) Each
of the Pledgors does hereby agree to execute and deliver to the
Collateral Agent (i) assignments separate from the Shares
substantially in the form of Exhibit A hereto,
undated and appropriately endorsed in blank, with respect to the
Share comprising the Pledged Collateral and (ii) if legally
required, such financing statements as the Collateral Agent may
reasonably request with respect to the Pledged Collateral (or, if
execution by Pledgors is not required pursuant to the applicable
Uniform Commercial Code, each of the Pledgors hereby authorizes the
Collateral Agent to file all financing statements deemed necessary
by the Investors to perfect the security interests granted
hereunder), (iii) take such other steps as the Investors may from
time to time reasonably request to perfect the Investors' security
interest in the Pledged Collateral or any part thereof under
applicable law, and (iv) after the occurrence and during the
continuance of an Event of Default, to execute and deliver on
behalf of the Pledgors such other documents of transfer as the
Investors or the Collateral Agent may from time to time reasonably
require to enable the Investors to transfer the Pledged Collateral
into the name of the Investors or the name of its nominee (all of
the foregoing are hereinafter collectively referred to as the
" Assignments " ) .
(c)
Notwithstanding anything to the contrary, express or implied,
contained in this Agreement or in the Guaranty, upon consummation
and performance of the Performance Obligations, the Notes shall,
for all purposes be deemed to have been fully paid and satisfied,
and this Agreement and the Guaranty shall automatically terminate
and be of no further force or effect.
2.
Definition; Security for Secured Obligations
.
(a) Unless
otherwise defined in this Agreement, when used herein all
capitalized terms shall have the same meaning as is defined in the
Purchase Agreement.
(b) The
Pledged Collateral secures the prompt and complete payment,
performance and observance of the Notes and the Performance
Obligations.
3.
Pledged Collateral Adjustments . If
during the term of this Agreement:
(a) any
non-cash dividend or distribution, reclassification, readjustment
or other change is declared or made in the capital structure of
Company, or any option, warrant or similar instrument included
within the Pledged Collateral is exercised, or both, or
(b) any
subscription, warrants, options shall be issued in connection with
the Pledged Collateral,
then the
Pledgors shall (i) promptly deliver new, substituted and additional
shares, warrants, options, or other equity securities, issued by
reason of any of the foregoing, and all certificates and other
instruments evidencing the same to the Investors to be held under
the terms of this Agreement and shall constitute Pledged Collateral
hereunder, and (ii) promptly deliver to the Investors or the
Collateral Agent such additional Pledged Collateral.
4.
Remedies Following an Event of Default.
Notwithstanding anything to the contrary,
express or implied, contained in this Agreement (including this
Section 4) or in the Purchase Agreement or any other Exhibit
thereto (including the Guaranty), an “Event of Default”
that would otherwise permit the Secured Parties to exercise any of
their rights and remedies under this Agreement shall not be deemed
to have occurred if (i) the consummation of the Performance
Obligations shall be delayed beyond June 16, 2009, (ii) the
Pledgors shall then be responding to comments from the Securities
and Exchange Commission and otherwise seeking, in good faith, to
perform such Performance Obligations, and (iii) the outstanding
principal amount of the Notes shall be increased as provided in the
Purchase Agreement.
(a) Following
the occurrence and during the continuance of an “Event of
Default” (as that term is defined in the Purchase Agreement),
upon not less than twenty (20) days prior written notice to the
Pledgors and the Collateral Agent, Investors holding a majority in
interest of the outstanding principal amount of the Notes (the
“ Majority Investors ”), may, at their option,
request that the Collateral Agent transfer or register the Pledged
Collateral or any part thereof into its or their nominee's name
with or without any indication that such Pledged Collateral is
subject to the lien created hereunder. In addition, upon the
occurrence and during the continuance of an Event of Default, the
Investors may at any time exchange certificates or other
instruments representing or evidencing Pledged Collateral for
certificates or other instruments of smaller or larger
denominations.
(b) If
at any time an Event of Default shall have occurred and be
continuing, then, in addition to having the right to exercise any
right or remedy of a secured party upon default under the New York
State Uniform Commercial Code or applicable law or at equity,
Secured Parties may, to the extent permitted by law but subject at
all times to the terms of the Purchase Agreement, subject to giving
notice to Pledgor but without being required to take or do any
action (except as provided below):
(i)
apply any cash held by it hereunder to the payment of the Notes;
and
(ii) if
there shall be no such cash or if the cash so applied shall be
insufficient to pay in full the Notes, collect, receive,
appropriate and realize upon the Pledged Collateral or any part
thereof, and/or sell, assign, transfer, contract to sell or
otherwise dispose of and deliver the Pledged Collateral or any part
thereof, in its entirety or in portions, at public or private sale
or at any broker's board, on any securities exchange or at any of
Secured Parties places of business or elsewhere, for cash, upon
credit or for future delivery, and at such price or prices as
Secured Parties may deem best, and Secured Parties may (except as
otherwise provided by law) be the purchaser of any or all of the
Pledged Collateral so sold and thereafter may hold the same,
absolutely, free from any right or claim of whatsoever
kind.
(c) In
the event of a sale as aforesaid, Secured Parties may, at any such
sale, restrict the number of prospective bidders or purchasers
and/or further restrict such prospective bidders or purchasers to
Persons who will represent and agree that they are purchasing for
their own account, for investment and not with a view to the
distribution or resale of the Pledged Collateral, and may otherwise
require that such sale be conducted subject to restrictions as to
such other matters as Secured Parties may deem necessary in order
that such sale may be effected in such manner as to comply with all
applicable state and federal securities and other
laws. Upon any such sale, Secured Parties shall have the
right to deliver, assign and transfer the Pledged Collateral so
sold to the purchaser thereof.
(d) Pledgors
hereby acknowledge that, notwithstanding that a higher price might
be obtained for the Pledged Collateral at a public sale than at a
private sale or sales, the making of a public sale of the Pledged
Collateral may be subject to registration requirements under
applicable securities laws and other legal restrictions, compliance
with which would make a public sale of the Pledged Collateral
impractical. Accordingly, Pledgors hereby agree that
private sales made by Secured Parties in good faith in accordance
with the provisions of this Section 4 may be at prices and
on other terms less favorable to the seller than if the Pledged
Collateral were sold at a public sale, and that Secured Parties
shall not have any obligation to take any steps in order to permit
the Pledged Collateral to be sold at a public sale.
(e) Each
purchaser at any such sale shall hold the property sold, absolutely
free from any claim or right whatsoever, including any equity or
right of redemption of Pledgors, and Pledgors hereby specifically
waive all rights of redemption, stay or appraisal and other rights
that Pledgors has or may have under any law, regulation or statute
now existing or hereafter adopted or otherwise. Secured
Parties shall give Pledgors not less than thirty (30) calendar
days' written notice of its intention to make any such public or
private sale. Such notice, in case of a public sale,
shall state the time and place fixed for such sale, and, in case of
a sale at broker's board, on a securities exchange, at one or more
of Secured Parties' places of business or elsewhere, shall state
the board, exchange or other location at which such sale is to be
made and the day on which the Pledged Collateral, or that portion
thereof so being sold, will first be offered for sale at such
location. Such notice, in case of a private sale, shall
state only the date on or after which such sale may be
made. Any such notice given as aforesaid shall be deemed
to be reasonable notification.
(f) Any
such public sale shall be held at such time or times within
ordinary business hours and at such place or places as Secured
Parties may fix in the notice of such sale. At any sale
the Pledged Collateral may be sold in one lot as an entirety or in
parts, as Secured Parties may determine. Secured Parties
shall not be obligated to make any sale pursuant to any such
notice. Secured Parties may, without notice or
publication, adjourn 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 Pledged Collateral on credit or for future
delivery, the Pledged Collateral so sold may be retained by Secured
Parties until the selling price is paid by the purchaser thereof,
but Secured Parties shall not incur any liability in case of the
failure of such purchaser to take up and pay for the Pledged
Collateral so sold and, in case of any such failure, such Pledged
Collateral may again be sold upon like notice.
(g) On
any sale of any part of the Pledged Collateral, Secured Parties is
hereby authorized to comply with any limitation or restriction in
connection with such sale that may be necessary in order to avoid
any violation of applicable law or in order to obtain any required
approval of the purchaser(s) by any governmental authority or
officer or court.
(h) Pledgors
hereby acknowledge, understand and agree that compliance with the
foregoing procedures shall satisfy any applicable requirements that
such sale or disposition be made in a commercially reasonable
manner.
5.
Representations and Warranties . The Pledgors hereby
represent and warrant to the Investors as follows:
(a) the
Pledgors are the legal and beneficial owner of the Pledged
Collateral owned by the Pledgors, free and clear of any lien,
except for the lien created by this Agreement; and
(b) The
Pledgors have full power and authority to enter into this
Agreement, assign, deposit, pledge and grant a lien on or otherwise
transfer all of its rights in the Pledged Collateral free and clear
of any liens;
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.
Voting Rights . During the term of this Agreement,
and except as otherwise provided in this Section 6, the Pledgors
shall have the right to vote any Shares which form all or a portion
of the Pledged Collateral, to the extent such Shares may be voted,
on all questions presented to the holders of ordinary shares of
Trestle, and the Collateral Agent will deliver all necessary
documents to allow the Pledgors to take such action upon the
Pledgors' request. After the occurrence and during the continuance
of an Event of Default, the Investors may, at the Investors'
option, exercise all voting and other consensual rights and powers
pertaining to the Pledged Collateral (to the extent it may vote).
the Pledgors hereby agree to execute all proxies or other
instruments, documents or agreements deemed reasonably necessary by
the Investors to evidence the right to vote the Pledged Collateral
as provided hereunder, and the Pledgors agree that they shall not
be entitled to rescind, revoke or otherwise modify the Investors'
vote executed in accordance with this Section 6. Any and all
proxies executed by the Pledgors pursuant to this Section 6 shall
be deemed for all purposes to be a proxy coupled with an interest
and shall be irrevocable until the payment in full, in cash, of all
amounts due under the Note.
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Dividends and Other Distributions . The
Collateral Agent shall be entitled to receive any and all dividends
and other distributions paid in respect of the Pledged Collateral
which dividends and/or distributions shall be deemed to be held in
escrow if received by the Investors and shall become part of the
Pledged Collateral upon receipt thereof.
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.
Transfers and Other Liens . The Pledgors agree that,
except as otherwise provided in Section 4 above, until all of the
Obligations are paid in full, it will not (i) sell or otherwise
dispose of, or grant any option or other rights with respect to,
any of the Pledged Collateral without the prior written consent of
the Investors, or (ii) create or permit to exist any lien upon
or
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