**EXHIBIT 10.35A**

 

**AMENDEDAND RESTATED PLEDGE AGREEMENT** dated as of November 21, 2000 (this “Agreement”),amending and restating that certain Pledge Agreement dated as of March 23, 2000(the “Original Agreement”), between **RICHARDS. MILLER**, an individual (the “Pledgor”), and **OPUS360 CORPORATION**, a Delaware corporation(the “Pledgee or Issuer”).

 

The Pledgorwas the holder of an option (the “Option”) for the purchase of shares ofthe Common Stock, par value $0.001 per share, of the Issuer (the “CommonStock”), granted by the Issuer to the Pledgor pursuant to the terms andconditions of the Amended and Restated Non-Statutory Option Agreement dated asof February 2, 2000, between the Pledgor and the Issuer (as amended,supplemented or otherwise modified from time to time in accordance with itsterms, the “Option Agreement”). Capitalized terms used but not otherwisedefined herein have the respective meanings assigned to them in the OptionAgreement.

 

Contemporaneouslywith the execution of the Original Agreement, on March 23, 2000, the Pledgorexercised the Option with respect to all of the Option 1 Shares coveredthereby, being 200,000 fully vested shares of Common Stock (the “PledgedShares”), before giving effect to thethen pending three-for-two split of the Common Stock approved by the Board ofDirectors of the Issuer prior to the date hereof, for an aggregatepurchase price of $800,000.  In order tofund (i) $790,00 of the aggregate purchase price of $800,000 being paid by thePledgor in connection with his exercise of the Option with respect to thePledged Shares and (ii) the Pledgor’s payment of the federal and statewithholding taxes (being $748,000) arising as a result of his exercise of theOption, the Pledgor borrowed $1,538,000(the “Original Loan”) from the Pledgee, against the issuance by thePledgor to the Pledgee of a secured, full-recourse, interest-bearing promissorynote dated the date hereof in the aggregate principal amount of the Loan (asamended, supplemented, restated or otherwise modified from time to time inaccordance with its terms, the “Prior Note”).

 

Subsequent tothe execution and delivery of the Prior Note and the Original Agreement, it wasdetermined that Pledgor’s actual federal and state income tax liability was inexcess of $1,026,700.  Contemporaneouslywith the execution hereof, Pledgor has borrowed an additional $278,700 (the “AdditionalLoan” and together with the Original Loan, the “Loan”) to fund theadditional tax liability and has issued to Pledgee an amended and restated PromissoryNote, in the aggregate principal amount of the Loan to evidence the Loan (asamended, supplemented, restated or otherwise modified from time to time inaccordance with its terms, the “Note”). The parties have thereforeagreed to amend and restate this Pledge Agreement to reflect certain changes tothe terms of the Loan and the pledge hereunder. Notwithstanding anything to thecontrary contained herein, the Pledgee’s recourse for the payment of theSecured Obligations

 

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shall be limited to the PledgedCollateral hereunder and the Pledgee shall have no recourse against any otherassets of Pledgor for any amount due under the Note.

 

Ascontemplated by the Note and to secure to the Pledgee the Pledgor’s due andpunctual payment and performance of his obligations under the Note and thisAgreement, the Pledgor is executing and delivering this Agreement to thePledgee.

 

Inconsideration of the mutual covenants contained herein and for other good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, and in order to induce the Issuer to make the Loan to thePledgor, the Pledgor and the Issuer hereby agree as follows:

 

1.     Pledge.

 

The Pledgor herebypledges, hypothecates, assigns, transfers, sets over and delivers unto the Pledgee,and grants to the Pledgee a first priority, perfected security interest in, allof 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 timeto time receivable or otherwise distributable in respect of, in exchange for,or in substitution of, any of the Pledged Shares or other property referred toin this clause (b); and (c) any and all products and proceeds of any ofthe 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 theNote, from a related Mandatory Prepayment (as such terms are defined in theNote) shall not be so delivered.

 

2.     Obligations Secured.

 

This Agreement is made,and the security interest created hereby is granted to the Pledgee, to securethe due and punctual payment and performance in full of the following(collectively, the “Secured Obligations”): (a) all obligations of thePledgor under this Agreement; (b) all obligations due and payable under theNote; and (c) any reasonable costs or expenses incurred by the Pledgee or thePledgee’s counsel in connection with the realization of the security for whichthis Agreement provides, including, without limitation, any reasonable costs orexpenses of any proceedings to which this Agreement may give rise.

 

3.     Representations andWarranties.

 

The Pledgor herebyrepresents and warrants to the Pledgee as follows:

 

(a)       The Pledgor is, and will at all timescontinue to be, the legal and beneficial owner of the Pledged Collateral andnone of the Pledged Collateral is subject to any Lien (other than the Lienscreated by this Agreement).  Nofinancing statement under the Uniform Commercial Code of any jurisdiction whichnames the Pledgor as debtor or covers any of the Pledged Collateral, or anyother notice filed in the public records indicating the existence of a lienthereon, has been filed and is still effective in any state or otherjurisdiction, other than Uniform Commercial Code financing statements filed infavor of the Pledgee, and the Pledgor has not signed any such financingstatement or notice or any security agreement authorizing the

 

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filing of any suchfinancing statement or notice, other than Uniform Commercial Code financingstatements filed in favor of the Pledgee.

 

(b)       The Pledgor (i) has the power andauthority to pledge the Pledged Collateral in the manner hereby done orcontemplated and (ii) will defend his title or interest thereto or thereinagainst 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 orany court of competent jurisdiction, administrative agency or commission orother governmental authority (“Governmental Entity”), securitiesexchange or any other person or entity was or is necessary to the validity ofthe pledge effected hereby.

 

4.     Covenants.

 

The Pledgor herebyunconditionally covenants and agrees that the Pledgor will not create, assume,incur or permit or suffer to exist or to be created, assumed or incurred, anyLien on any of the Pledged Collateral (or any interest therein) (except for anyLien arising under this Agreement) and will not sell, lease, assign, transferor otherwise dispose of all or any portion of the Pledged Collateral (or anyinterest therein).

 

Inthe event Pledgor’s employment with Pledgee terminates prior to the payment infull of the Note, and such termination causes Pledgor (or Pledgor’s estate, asthe case may be) to incur income tax liability as a result of the amendment andrestatement of this Note, Pledgee agrees to indemnify Pledgor (or Pledgor’sestate, as the case may be) from and against any such income tax liability netof any deductions taken by Pledgor for losses or otherwise that are associatedwith the Note or the disposition of the Pledged Collateral, by reimbursingPledgor (or his estate) for the amount of the net income tax liability soincurred plus such additional amount necessary to pay the taxes due on theamount of the tax liability plus such additional amount.  Pledgor shall use all good faith efforts tominimize such net tax liability and shall provide Pledgee with information onthe tax liability he believes has been incurred and the amount of offsettingdeductions, if any, plus an opportunity to review such information withPledgor’s tax advisor, prior to filing any tax return reflecting such taxliability with the Internal Revenue Service. Further, in the event Pledgorreceives notice from the Internal Revenue Service of a claim that Pledgor owesadditional amounts for which Pledgee is obligated to indemnify Pledgorhereunder, Pledgor shall authorize Pledgee to contest or defend  any such claim on Pledgor’s behalf, at Pledgee’sexpense, and provided Pledgee will further indemnify Pledgor for any penaltiesand/or interest incurred during the pendency of any such contest or defense.

 

5.     Additional Shares.

 

The Pledgor agrees that,until this Agreement has terminated in accordance with its terms, anycertificates, instruments or other documents evidencing Pledged Collateralconsisting of additional Securities of the Issuer at any time issued to thePledgor or otherwise acquired by the Pledgor in the manner described in clause(b) of Section 1 shall be promptly delivered or otherwisetransferred to the Pledgee, such additional Securities being additional PledgedCollateral and subject to the lien of, and the terms and conditions of, thisAgreement.

 

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6.     Registration in NomineeName, Denominations.

 

The Pledgee shall havethe right (in its sole and absolute discretion) to hold the Pledged Collateralin its own name as pledgee, the name of its nominee (as Pledgee or assub-agent) or the name of the Pledgor, endorsed or assigned in blank or infavor of the Pledgee.  The Pledgor willpromptly give to the Pledgee copies of any notices or other communicationsreceived by him with respect to Pledged Collateral registered in the name of thePledgor.  The Pledgee shall at all timeshave the right to exchange the certificates representing Pledged Collateral forcertificates of smaller or larger numbers of shares for any purpose consistentwith this Agreement.

 

7.     Voting Rights; Dividends.

 

(a)       So long as no Event of Default (as definedin the Note) shall have occurred and be continuing, the Pledgor shall beentitled to exercise any and all voting and consensual rights and powersaccruing to an owner of the Pledged Collateral or any part thereof for anypurpose not inconsistent with the terms and conditions of this Agreement or anyagreement giving rise to or otherwise relating to any of the SecuredObligations; provided, however, that the Pledgor shall notexercise, or refrain from exercising, any such right or power if any such actioncould have a adverse effect on the value of such Pledged Collateral in the solejudgment of the Pledgee. The Pledgor shall not be entitled to retain and useany and all dividends or distributions or other payments paid on the PledgedCollateral, including any and all stock and/or liquidating dividends, otherdistributions in property, return of capital or other cash or non-cashdistributions made on or in respect of Pledged Collateral, whether resultingfrom a subdivision, combination or reclassification of outstanding Securitiesof the Issuer which are pledged hereunder or received in exchange for PledgedCollateral or any part thereof or as a result of any merger, consolidation,acquisition or other exchange of assets or on the liquidation, whether voluntaryor involuntary, of the Issuer, or otherwise, such property, if it is a cashdividend or distribution or other cash payment, being a Mandatory Prepayment,or otherwise being additional Pledged Collateral pledged hereunder, and, ifreceived by the Pledgor, shall forthwith be delivered to the Pledgee to be heldas Pledged Collateral subject to the terms and conditions of this Agreement andthe Note; provided, however, that the amount of any Distributionexcluded, pursuant to the Note, from a related Mandatory Prepayment (as suchterms are defined in the Note) shall not be so delivered.  The Pledgee agrees to execute and deliver tothe Pledgor, or cause to be executed and delivered to the Pledgor, asappropriate, at the sole cost and expense of the Pledgor, all such proxies,powers of attorney, dividend orders and other instruments as the Pledgor mayrequest for the purpose of enabling the Pledgor to exercise the voting and/orconsensual rights and powers which Pledgor is entitled to exercise and/or to receivethe dividends which Pledgor is authorized to retain.  Without limiting the generality of the foregoing, the Pledgorhereby grants a proxy (which shall be a proxy coupled with an interest) to thePledgee to vote the Pledged Collateral upon the occurrence and continuation ofan Event of Default.

 

(b)       Upon the occurrence and during thecontinuance of an Event of Default, all rights of the Pledgor to exercise thevoting and/or consensual rights and powers which Pledgor is entitled toexercise pursuant to Section 7(a) shall cease, and all such rightsthereupon shall become immediately vested in the Pledgee, which shall have, tothe extent permitted by any law, rule, regulation, ordinance or code of anyGovernmental Entity (each, a “Law”), the sole and

 

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exclusive rightand authority to exercise such voting and/or consensual rights and powers whichthe Pledgor shall otherwise be entitled to exercise pursuant to Section 7(a).  Any and all money and other property paidover to or received by the Pledgee pursuant to the provisions of this Section7(b) shall be retained by the Pledgee as additional collateral hereunderand shall be applied in accordance with the provisions of Section 9.  If the Pledgor shall receive any dividendsor 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 comminglingthe same with other funds or property of or held by the Pledgor, and shallpromptly deliver the same to the Pledgee upon receipt by the Pledgor in theidentical form received, together with any necessary endorsements.

 

8.     Remedies upon Event ofDefault**.**

 

(a)       In addition to any right or remedy thatthe Pledgee may have under the Note, any other loan documents or otherwiseunder applicable Law, if an Event of Default shall have occurred and becontinuing, the Pledgee may exercise any and all of the rights and remedies ofa secured party under the Uniform Commercial Code as in effect in any applicablejurisdiction (the “Code”) and may otherwise sell, assign, transfer,endorse and deliver the whole or, from time to time, any part of the PledgedCollateral 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 forsuch price or prices and on such terms as the Pledgee in its discretion shalldeem appropriate.  The Pledgee shall beauthorized at any sale (if it deems it advisable to do so) to restrict theprospective bidders or purchasers to persons or entities who will represent andagree that they are purchasing the Pledged Collateral for their own account incompliance with the Securities Act and upon consummation of any such sale thePledgee shall have the right to assign, transfer, endorse and deliver to thepurchaser or purchasers thereof the Pledged Collateral so sold.  Each purchaser at any sale of PledgedCollateral shall take and hold the property sold absolutely free from any claimor right on the part of the Pledgor, and the Pledgor hereby waives (to thefullest extent permitted by applicable Law) all rights of redemption, stayand/or appraisal which the Pledgor now has or may at any time in the futurehave under any applicable Law now existing or hereafter enacted.  The Pledgor agrees that, to the extentnotice of sale shall be required by applicable Law, at least ten days’ priorwritten notice to the Pledgor of the time and place of any public sale or thetime after which any private sale is to be made shall constitute reasonablenotification, but notice given in any other reasonable manner or at any otherreasonable time shall constitute reasonable notification.  Such notice, in case of public sale, shallstate the time and place for such sale, and, in the case of sale on asecurities exchange, shall state the exchange on which such sale is to be madeand the day on which the Pledged Collateral, or portion thereof, will first beoffered for sale at such exchange.  Anysuch public sale shall be held at such time or times within ordinary businesshours and at such place or places as the Pledgee may fix and shall state in thenotice 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 Pledgeemay determine in its sole and absolute discretion.  The Pledgee shall not be obligated to make any sale of thePledged Collateral if it shall determine not to do so regardless of the factthat notice of sale of the Pledged Collateral may have been given.  The Pledgee may, without notice orpublication, adjourn any public or private sale or cause the same to beadjourned from time to time by announcement at the time and place fixed forsale, and such sale may, without further notice, be made at the time and placeto which the same was so adjourned.  Incase the sale of all or any part of the Pledged Collateral is made on credit orfor future delivery, the

 

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Pledged Collateralso sold may be retained by the Pledgee until the sale price is paid by thepurchaser or purchasers thereof, but the Pledgee shall not incur any liabilityto the Pledgor in case any such purchaser or purchasers shall fail to take upand 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 thisAgreement, the Pledgee, to the extent permitted by applicable Law, may bid foror purchase, free from any right of redemption, stay and/or appraisal on thepart of the Pledgor (all said rights being also hereby waived and released tothe extent permitted by applicable Law), any part of or all the PledgedCollateral offered for sale and may make payment on account thereof by usingany claim then due and payable to the Pledgee from the Pledgor as a creditagainst the purchase price, and the Pledgee may, upon compliance with the termsof sale and to the extent permitted by applicable Law, hold, retain and disposeof such property without further accountability to the Pledgor therefor.  For purposes hereof, a written agreement topurchase all or any part of the Pledged Collateral shall be treated as a salethereof; the Pledgee shall be free to carry out such sale pursuant to suchagreement; and the Pledgor shall not be entitled to the return of any PledgedCollateral subject thereto, notwithstanding the fact that after the Pledgeeshall have entered into such an agreement the Secured Obligations may have beenpaid in full as herein provided.  ThePledgor hereby waives any right to require any marshaling of assets and anysimilar right.

 

(b)       If an Event of Default shall haveoccurred and be continuing, in addition to exercising the power of sale hereinconferred upon it, the Pledgee shall also have the option to proceed by suit orsuits at law or in equity to foreclose this Agreement and sell the PledgedCollateral or any portion thereof pursuant to judgment or decree of a court orcourts having competent jurisdiction.

 

(c)       The rights and remedies of the Pledgeeunder this Agreement are cumulative and not exclusive of any rights or remedieswhich it would otherwise have.

 

9.     Application of Proceedsof Sale and Cash.

 

The proceeds ofany sale of the whole or any part of the Pledged Collateral, together with anyother moneys held by the Pledgee under the provisions of this Agreement, shallbe applied by the Pledgee in the following order:

 

(a)       First: to the payment of all costsand expenses incurred in connection with such sale or other realization,including reasonable attorneys’ fees incurred if the Pledgee endeavored tocollect the Secured Obligations by or through an attorney at law;

 

(b)       Second: to the payment of theinterest due upon any of the Secured Obligations, in any order which thePledgee may elect;

 

(c)       Third: to the payment of theprincipal due upon any of the Secured Obligations in any order which thePledgee may elect; and

 

(d)       Fourth: the balance (if any) ofsuch proceeds shall be paid to the Pledgor or to whomsoever may be legallyentitled thereto.

 

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10.   Pledgee AppointedAttorney-in-Fact.

 

The Pledgor herebyconstitutes and appoints the Pledgee as the attorney-in-fact of the Pledgorwith full power of substitution either in the Pledgee’s name or in the name ofthe Pledgor to do any of the following: (a) to perform any obligation of thePledgor hereunder in the Pledgor’s name or otherwise; (b) to ask for, demand,sue for, collect, receive, receipt and give acceptance for any and all moneysdue or to become due under and by virtue of any Pledged Collateral; (c) toprepare, execute, file, record or deliver notices, assignments, financingstatements, continuation statements, applications for registration or likepapers to perfect, preserve or release the Pledgee’s security interest in thePledged Collateral or any of the documents, instruments, certificates andagreements described herein; (d) to verify facts concerning the Pledged Collateralin its own name or a fictitious name; (e) to endorse checks, drafts, orders andother instruments for the payment of money payable to the Pledgor, representingany interest or dividend or other distribution payable in respect of thePledged Collateral or any part thereof or on account thereof and to give fulldischarge for the same; (f) to exercise all rights, powers and remedies whichthe 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 actionand execute any instrument which the Pledgee may deem necessary or advisable toaccomplish the purposes hereof, and to do all acts and things and execute alldocuments in the name of the Pledgor or otherwise, deemed by the Pledgee asnecessary, proper and convenient in connection with the preservation,perfection or enforcement of its rights hereunder.  Nothing herein contained shall be construed as requiring orobligating the Pledgee to make any commitment or to make any inquiry as to thenature or sufficiency of any payment received by it, or to present or file anyclaim or notice, or to take any action with respect to the Pledged Collateralor any part thereof or the moneys due or to become due in respect thereof orany property covered thereby, and no action taken by the Pledgee or omitted tobe taken with respect to the Pledged Collateral or any part thereof shall giverise to any defense, counterclaim or offset in favor of the Pledgor or to anyclaim or action against the Pledgee. The power of attorney granted herein isirrevocable and coupled with an interest.

 

11.   Further Assurances.

 

The Pledgor shall,at his sole cost and expense, take all action that may be necessary ordesirable in the Pledgee’s sole discretion, so as at all times to maintain thevalidity, perfection, enforceability and priority of the Pledgee’s securityinterest in the Pledged Collateral, or to enable the Pledgee to exercise orenforce its rights hereunder, including, without limitation, (a) delivering tothe Pledgee, endorsed or accompanied by such instruments of assignment as thePledgee may specify, any and all chattel paper, instruments, letters of creditand all other advices of guaranty and documents evidencing or forming a part ofthe Pledged Collateral and (b) executing and delivering financing statements,pledges, designations, notices and assignments, in each case in form andsubstance satisfactory to the Pledgee, relating to the creation, validity,perfection, priority or continuation of the security interest grantedhereunder. The Pledgor agrees to take, and authorizes the Pledgee to take onthe Pledgor’s behalf, any or all of the following actions with respect to anyPledged Collateral as the Pledgee shall deem necessary to perfect the securityinterest and pledge created hereby or to enable the Pledgee to enforce itsrights and remedies hereunder: (i) to register in the name of the Pledgee anyPledged Collateral in certificated or uncertificated form; (ii) to endorse inthe name of the Pledgee any Pledged Collateral issued in certificated form; and(iii) by book entry or otherwise, identify as belonging to the Pledgee aquantity of securities that constitutes all or part of the Pledged Collateral

 

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registered in the name of thePledgee.  Notwithstanding the foregoingthe Pledgor agrees that Pledged Collateral which is not in certificated form oris otherwise in book-entry form shall be held for the account of thePledgee.  The Pledgor hereby authorizesthe 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 namethereto.  The Pledgor authorizes thePledgee to file any such financing statement, document or instrument withoutthe signature of the Pledgor to the extent permitted by applicable Law.  To the extent permitted by applicable Law, acarbon, photographic or other reproduction of this Agreement or any financingstatement is sufficient as a financing statement.  Any property comprising part of the Pledged Collateral requiredto be delivered to the Pledgee pursuant to this Pledge Agreement shall beaccompanied by proper instruments of assignment duly executed by the Pledgorand by such other instruments or documents as the Pledgee may reasonablyrequest.  In the event any PledgedCollateral in certificated form becomes eligible for book-entry treatment, thePledgor will use its best efforts to effectuate such book-entry treatment withrespect to such Pledged Collateral.

 

12.   Securities Laws.

 

In view of theposition of the Pledgor in relation to the Pledged Collateral, or because ofother current or future circumstances, a question may arise under theSecurities 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 effectbeing called the “Securities Laws”) with respect to any disposition ofthe Pledged Collateral permitted hereunder. The Pledgor understands thatcompliance with the Securities Laws might very strictly limit the course ofconduct of the Pledgee if the Pledgee were to attempt to dispose of all or anypart of the Pledged Collateral in accordance with the terms hereof, and mightalso limit the extent to which or the manner in which any subsequent transfereeof any Pledged Collateral could dispose of the same.  Similarly, there may be other legal restrictions or limitationsaffecting the Pledgee in any attempt to dispose of all or part of the PledgedCollateral in accordance with the terms hereof under applicable “Blue Sky”or other state securities Laws or similar applicable Law analogous in purposeor effect.  The Pledgor recognizes thatin light of the foregoing restrictions and limitations the Pledgee may, withrespect to any sale of the Pledged Collateral, limit the purchasers to thosewho will agree, among other things, to acquire such Pledged Collateral fortheir own account, for investment, and not with a view to the distribution orresale thereof.  The Pledgor acknowledgesand agrees that in light of the foregoing restrictions and limitations, thePledgee, in its sole and absolute discretion, may, in accordance withapplicable Law, (a) proceed to make such a sale whether or not a registrationstatement for the purpose of registering such Pledged Collateral or partthereof shall have been filed under the Securities Laws and (b) approach andnegotiate with a single potential purchaser to effect such sale.  The Pledgor acknowledges and agrees that anysuch sale might result in prices and other terms less favorable to the sellerthan if such sale were a public sale without such restrictions.  In the event of any such sale, the Pledgeeshall incur no responsibility or liability for selling all or any part of thePledged Collateral in accordance with the terms hereof at a price that thePledgee may in good faith deem reasonable under the circumstances,notwithstanding the possibility that a substantially higher price might havebeen realized if the sale were deferred until after registration asaforesaid.  The provisions of this Section12 will

 

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apply notwithstanding theexistence of public or private market upon which the quotations or sales pricesmay exceed substantially the price at which the Pledgee sells.

 

13.   Continuing SecurityInterest.

 

This Agreementshall create a continuing security interest in the Pledged Collateral and shallremain in full force and effect until it terminates in accordance with itsterms.  The Pledgor and the Pledgeehereby agree that the security interest created by this Agreement in thePledged Collateral shall not terminate and shall continue and remain in fullforce and effect notwithstanding the transfer to the Pledgee of a portion ofthe Pledged Collateral.

 

14.   Security InterestAbsolute.

 

All rights of thePledgee hereunder, the grant of a security interest in the Pledged Collateraland all obligations of the Pledgor hereunder, shall be absolute andunconditional irrespective of (a) any lack of validity or enforceability of theNote or any other loan document, any agreement with respect to any of theSecured Obligations or any other agreement or instrument relating to any of theforegoing, (b) any change in the time, manner or place of the payment of, or inany other term of, all or any of the Secured Obligations, or any otheramendment or waiver of or any consent to any departure from the Note, any otherloan document, or any other agreement or instrument relating to any of theforegoing, (c) any exchange, release or nonperfection of any other collateral,or any release or amendment or waiver of or consent to or departure from anyguaranty, for all or any of the Secured Obligations or (d) any othercircumstance that might otherwise constitute a defense available to, or adischarge of, the Pledgor in respect of the Secured Obligations or in respectof this Agreement (other than the indefeasible payment in full of all theSecured Obligations).

 

15.   No Waiver.

 

Neither the failure onthe 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 thePledgee and the Pledgor, shall operate as a waiver thereof, nor shall anysingle or partial exercise of any such right, power, or remedy hereunderpreclude any other or the further exercise thereof or the exercise of any otherright, power or remedy.

 

16.   Notices.

 

All notices,demands or other communications to be given or delivered under or by reason ofthe provisions of this Agreement shall be in writing and shall be deemed tohave been given or made when (i) delivered personally to the recipient, (ii)transmitted by facsimile or electronic mail (with hard copy sent to therecipient by reputable overnight courier service (charges prepaid) that sameday and, in the latter case, with receipt acknowledged by the recipient byreturn electronic mail) if faxed or e-mailed before 5:00 p.m. (New York, NewYork time) on a Business Day, and otherwise on the next Business Day, (iii) twoBusiness Days after being sent to the recipient by reputable overnight courierservice (charges prepaid), or (iv) five Business Days after being sent to therecipient by registered or certified mail (postage prepaid and return receiptrequested).  Such notices, demands andother communications shall be sent to

 

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the address for such recipientas set forth below (or to such other address or to the attention of such otherperson as the recipient party has specified by like notice):

 

(i)    if to the Issuer or Pledgee, to

 

Opus360 Corporation39 West 13th Street, 3rd FloorNew York, New York 10011Attention: General Counsel

Telephone: (212) 884-6492 Facsimile: (212) 884-6220E-Mail: jmurphy@opus360.com

 

(ii)   if to the Pledgor, to

 

Richard S. Miller5 Croydon RoadMorristown, New Jersey 07960Telephone: (973) 267-8448Facsimile: (973) 267-8397E-Mail: rmiller@opus360.com

 

with a copy (which shall not constitute notice) to:

 

Walter, Conston, Alexander & Green, P.C.90 Park AvenueNew York, New York 10016Attention: Saul Ben-MeyerTelephone: (212) 210-9545Facsimile: (212) 210-9444E-Mail: sben-meyer@wcag.com

 

As used in thisAgreement, 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 areauthorized or obligated by law or executive order to close.

 

17.   Governing Law.

 

THIS AGREEMENT SHALL BE GOVERNEDBY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORKWITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PROVISION OR RULE (WHETHER OF THESTATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATIONOF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.

 

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18.   Amendments.

 

No amendment or waiver ofany provision of this Agreement nor consent to any departure by the Pledgorherefrom shall in any event be effective unless the same shall be in writingand signed by the parties hereto, and then such waiver or consent shall beeffective only in the specific instance and for the specific purpose for whichgiven.

 

19.   Binding Agreement.

 

This Agreementshall be binding upon and inure to the benefit of the parties hereto and theirrespective successors and assigns, except that the Pledgor shall not bepermitted to assign this Agreement or any interest herein or in the PledgedCollateral, or any part thereof, or any cash or property held by the Pledgee ascollateral under this Agreement.

 

20.   Termination.

 

Upon payment infull of all of the Secured Obligations, this Agreement shall terminate.  The release of Pledged Collateral orreassignment of rights to the Pledgor upon the termination of this Agreementshall be without recourse to or warranty by the Pledgee and shall be made bythe Pledgee at the sole cost and expense of the Pledgor, except to the extentsuch costs and expenses are the result of Pledgee’s bad faith or grossnegligence.  Upon the release of PledgedCollateral or reassignment of rights to the Pledgor, the Pledgee will, at thesole cost and expense of the Pledgor, except to the extent such costs andexpenses are the result of Pledgee’s bad faith or gross negligence, execute anddeliver to the Pledgor such documents as the Pledgor shall reasonably requestto evidence such release and reassignment and shall deliver to the Pledgor allPledged Collateral so released then in its possession and not applied insatisfaction of the Secured Obligations.

 

21.   Severability.

 

In case anyprovision of this Agreement shall be invalid, illegal or unenforceable in anyjurisdiction, the validity, legality and enforceability of the remainingprovisions 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 tothis Agreement are for convenience of reference only and shall not govern oraffect in any way the meaning or interpretation of any of the terms orprovisions of this Agreement.  Exceptwhen the context requires otherwise, any reference in this Agreement to anyArticle, Section or clause shall be to the Articles, Sections and clauses ofthis Agreement.  The words “include,”“includes” and “including” are deemed to be followed by thephrase “without limitation.”  Anyreference to the masculine, feminine or neuter gender shall include such othergenders and any reference to the singular or plural shall include the other, ineach case unless the context otherwise requires. Where specific language is used to clarify by examplea general statement contained herein, such specific language shall not bedeemed to modify, limit or restrict in any manner the construction of thegeneral statement to which it relates. The language used in this Agreement has been chosen by the parties toexpress their mutual intent, and no rule of strict construction shall beapplied against any party.

 

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23.   Counterparts.

 

This Agreement may be executed in any number ofcounterparts, each of which shall be deemed an original and all of which shallconstitute but one agreement. ThisAgreement, the agreements referred to herein, and each other agreement orinstrument entered into in connection herewith or therewith or contemplatedhereby or thereby, and any amendments hereto or thereto, to the extent signedand delivered by means of a facsimile machine, shall be treated in all mannerand respects as an original agreement or instrument and shall be considered tohave the same binding legal effect as if it were the original signed versionthereof delivered in person.

** **

**IN WITNESS WHEREOF**, the Pledgor and the Pledgee have executed thisPledge Agreement as of the date first written above.

 
|   | **PLEDGOR:**            |
|--------|-------------------------|
|   |                    |
|   |                    |   |
|   | Richard S. Miller       |
|   |                    |
|   |                    |
|   | **PLEDGEE:**            |
|   |                    |
|   | **OPUS360 CORPORATION** |
|   |                    |
|   | By:                     |   |   |
|   |                    | Ari B. Horowitz |
|   |                    | Chairman and Chief Executive Officer |
|        |                         |  |  |

 

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