Exhibit 10.44


 


AMENDED AND RESTATED STOCK PLEDGE AGREEMENT


 


STOCK
PLEDGE AGREEMENT (the “Agreement”) dated this 22nd day of March, 2004,
and amended and restated this 23rd day of June, 2005, made by and among Time
America, Inc., a Nevada corporation (the “Company”), and each of
the other undersigned parties (other than the Noteholder (as defined below))
(the Company and each such other undersigned party, a “Pledgor” and
collectively, the “Pledgors”), and Laurus Master Fund, Ltd., a Cayman
Islands company (the “Noteholder”).


 


PRELIMINARY
STATEMENTS:


 


(1)           The
Company and the Noteholder have entered into (x) a Securities Purchase
Agreement, dated as of March 22, 2004 (as amended, modified, restated or
supplemented from time to time, the “2004 Securities Purchase Agreement”),
and (y) a Security Agreement, dated as of June 23, 2005 (as amended,
modified, restated or supplemented from time to time, the “2005 Security
Agreement”), pursuant to which the Pledgee has provided or will provide
certain financial accommodations to the Company and/or certain subsidiaries of
the Company.


 


(2)           The
securities held by each Pledgor in their respective wholly-owned subsidiaries
as listed in Schedule A hereof are collectively referred to herein as the “Pledged
Securities”.


 


NOW,
THEREFORE, in consideration of the premises and in further consideration of the
covenants contained herein, the parties hereto agree as follows:


 


SECTION 1.           Pledge.  For the benefit of the Noteholder, each
Pledgor hereby pledges and grants a security interest in, the following (the “Pledged
Collateral”):


 


(a)           the
Pledged Securities and the certificates representing the Pledged Securities,
and all dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Securities; and


 


(b)           all
proceeds of any and all of the foregoing (including, without limitation,
proceeds that constitute property of the types described above).


 


SECTION 2.           Security
for Obligations.  This Agreement and
the Pledged Collateral pledged hereunder secures the full and punctual payment
and performance of (the following clauses (a), (b) and (c), collectively,
the “Obligations”) (a) the obligations under the 2004 Securities
Purchase Agreement and the Related Agreements referred to in the 2004
Securities Purchase Agreement, (b) the 2005 Security Agreement and the
Ancillary Agreements referred to in the 2005 Security Agreement (the 2004
Securities Purchase Agreement, the Related Agreements referred to in the 2004
Securities Purchase Agreement, the 2005 Security Agreement and the Ancillary
Agreements referred to in the 2005 Security Agreement, as each may be amended,
restated, modified and/or supplemented from time to time, collectively, the “Documents”)
and (c) all other obligations and liabilities of each Pledgor to the
Pledgee whether now existing or hereafter arising, direct or indirect,
liquidated or unliquidated, absolute or contingent, due or not due and whether
under, pursuant to or evidenced by a note, agreement, guaranty, instrument or
otherwise (in each case, irrespective of the genuineness, validity, regularity
or enforceability of such Obligations, or of any instrument evidencing any of
the Obligations or of any collateral therefor or of the existence or extent of
such collateral, and irrespective of the allowability, allowance or
disallowance of any or all of such in any case commenced by or against any
Pledgor under Title 11, United States Code, including, without limitation,
obligations of each Pledgor for post-petition interest, fees, costs and charges
that would have accrued or been added to the Obligations but for the
commencement of such case).


 


SECTION 3.           Delivery
of Pledged Collateral.  All
certificates or instruments representing or evidencing the Pledged Collateral
shall be delivered to and held by the Noteholder pursuant hereto and shall be
in suitable form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or


 

















 


assignment in blank, all in form and substance satisfactory to the
Noteholder.  Upon the occurrence and
during the continuation of an Event of Default (as defined below), the
Noteholder shall have the duty, at any time on five business days’ notice to
the appropriate Pledgor or Pledgors, to transfer to or to register in the name
of the Noteholder or any of its nominees, any or all of the Pledged
Collateral.  In addition, the Noteholder
shall have the right at any such time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments
of smaller or larger denominations. The Noteholder shall file appropriate
financing statements.


 


SECTION 4.           Representations
and Warranties.  The Pledgor
represents and warrants as follows:


 


(a)           Each
Pledgor is and will be the sole legal, record and beneficial owner of the
Pledged Collateral free and clear of any lien, security interest, option or
other charge or encumbrance, except for the security interest created by this
Agreement.


 


(b)           The
pledge of the Pledged Collateral pursuant to this Agreement creates and will
create a valid and perfected first priority security interest in the Pledged
Collateral, securing the payment of the Obligations.


 


SECTION 5.           Further
Assurances.  At any time and from
time to time, at the joint and several expense of the Pledgors, each 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
Noteholder may reasonably request, in order to perfect and protect the security
interest granted or purported to be granted hereby or to enable the Noteholder
to exercise and enforce the rights and remedies hereunder with respect to any
Pledged Collateral.


 


SECTION 6.           Voting
Rights; Dividends; Etc.


 


(a)           So
long as no Event of Default or event which, with the giving of notice or the
lapse of time, or both, would become an Event of Default shall have occurred
and be continuing:


 


(i)            Each
Pledgor shall be entitled to exercise or refrain from exercising any and all
voting and other consensual rights pertaining to the Pledged Collateral or any
part thereof for any purpose not inconsistent with the terms of this Agreement.


 


(ii)           Each
Pledgor shall be entitled to receive and retain any and all dividends and
distributions paid in respect of the Pledged Collateral, provided, however,
that any and all (A) dividends paid or payable other than in cash in
respect of, and instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, Pledged Collateral,
and (B) dividends and other distributions paid or payable in cash in
respect of any Pledged Collateral in connection with a partial or total
liquidation or dissolution, shall be, and shall be forthwith delivered to the
Noteholder to hold as, Pledged Collateral and shall, if received by any
Pledgor, be received in trust for the benefit of the Noteholder, be segregated
from the other property or funds of the Pledgor, and be forthwith delivered to
the Noteholder as Pledged Collateral in the same form as so received (with any
necessary endorsement or assignment).


 


(iii)          The
Noteholder, shall execute and deliver (or cause to be executed and delivered)
to the appropriate Pledgor all such proxies and other instruments as such
Pledgor may reasonably request for the purpose of enabling such Pledgor to
exercise the voting and other consensual rights that it is entitled to exercise
pursuant to subsection (i) above and to receive the dividends that it
is authorized to receive and retain pursuant to subsection (ii) above.


 


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(b)           Upon
the occurrence and during the continuance of an Event of Default or an event
which, with the giving of notice or the lapse of time, or both, would become an
Event of Default:


 


(i)            All
rights of the Pledgor to exercise or refrain from exercising the voting and
other consensual rights that it would otherwise be entitled to exercise
pursuant to Section 6(a)(i) and to receive the dividends payments
that it would otherwise be authorized to receive and retain pursuant to Section 6(a)(ii) shall
cease, and all such rights shall thereupon become vested in the Noteholder who
shall thereupon have the sole right to exercise or refrain from exercising such
voting and other consensual rights at the direction of the Noteholder and to
receive and hold as Pledged Collateral such dividends.


 


(ii)           All
dividends that are received by any Pledgor contrary to the provisions of subsection (i) of
this Section 6(b) shall be received in trust for the benefit of the
Noteholder, shall be segregated from other funds of such Pledgor and shall be
forthwith paid over to the Noteholder as Pledged Collateral in the same form as
so received (with any necessary endorsement).


 


(c)           As
used herein, “Event of Default” (i) shall mean an “Event of Default” under
and as defined in any Document, and (ii) shall mean the failure of any
Pledgor to pay or perform any of its obligations under this Agreement and the
continuation of such failure for a period of 5 (five) days.


 


SECTION 7.           Transfers
and Other Liens.  No Pledgor will (i) sell,
assign (by operation of law or otherwise) or otherwise dispose of, or grant any
option with respect to, any of the Pledged Collateral, or (ii) create or
permit to exist any lien, security interest, option or other charge or
encumbrance upon or with respect to any of the Pledged Collateral, except for
the security interest under this Agreement.


 


SECTION 8.           Noteholder
Appointed Attorney-in-Fact.  Each
Pledgor hereby appoints the Noteholder such Pledgor’s attorney-in-fact, with
full authority in the place and stead of such Pledgor and in the name of such
Pledgor or otherwise, from time to time in the Noteholder’s discretion to take
any action and to execute any instrument that the Noteholder may deem necessary
or advisable to accomplish the purposes of this Agreement (subject to the
rights of such Pledgor under Section 6), including, without limitation, to
receive, endorse and collect all instruments made payable to such Pledgor
representing any dividend or any part thereof and to give full discharge for
the same.


 


SECTION 9.           Noteholder
May Perform.  If any Pledgor
fails to perform any agreement contained herein, the Noteholder, may itself
perform, or cause performance of, such agreement, and the expenses of the
Noteholder incurred in connection therewith shall be payable by such Pledgor
under Section 11.


 


SECTION 10.         Remedies
upon Event of Default.  Subject to
the provisions of Section 6, if any Event of Default shall have occurred
and be continuing:


 


(a)           The
Noteholder may exercise in respect of the Pledged Collateral, in addition to
other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the Uniform
Commercial Code in effect in the State of New York at the time (the “Code”)
(whether or not the Code applies to the Pledged Collateral), and may also,
without notice except as specified below, sell the Pledged Collateral or any
part thereof in one or more parcels at public or private sale, at any exchange,
broker’s board or at any office of the Noteholder or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as the Noteholder may
deem commercially reasonable.  Each
Pledgor agrees that, to the extent notice of sale shall be required by law, at
least 5 (five) days’ notice to such 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 Noteholder
shall not be obligated to make any sale of Pledged Collateral regardless of
notice of sale having been given.  The
Noteholder may adjourn


 


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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)           Any
cash held by the Noteholder as Pledged Collateral and all cash proceeds
received by the Noteholder in respect of any sale of, collection from, or other
realization upon all or any part of the Pledged Collateral may, in the
discretion of the Noteholder, be held by the Noteholder as collateral for,
and/or then or at any time thereafter be applied (after payment of any amounts
payable to the Noteholder pursuant to Section 11) in whole or in part by
the Noteholder against, all or any part of the Obligations in such order as the
Noteholder shall be directed by the Noteholder. 
Any surplus of such cash or cash proceeds held by the Noteholder and
remaining after payment in full of each Pledgor’s obligations in respect of the
Obligations shall be paid over to the appropriate Pledgor or to whomsoever may
be lawfully entitled to receive such surplus.


 


SECTION 11.         Expenses.  Each Pledgor will upon demand pay to the
Noteholder the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts and agents, that
the Noteholder may incur in connection with (i) the custody or
preservation of, or the sale of, collection from, or other realization upon,
any of the Pledged Collateral, (ii) the exercise or enforcement of any of
the rights of the Noteholder hereunder or (iii) the failure by any Pledgor
to perform or observe any of the provisions hereof.


 


SECTION 12.         Amendments,
Etc.  No amendment or waiver of any
provision of this Agreement, and no consent to any departure by any Pledgor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by each Pledgor and the Pledgee, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.


 


SECTION 13.         Notices.  All notices, request, demands and other
communications required or permitted hereunder shall be sent in accordance with
the notice provisions set forth in each of the 2004 Securities Purchase
Agreement and the 2005 Security Agreement.


 


SECTION 14.         Continuing
Security Interest.


 


(a)           This
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (i) remain in full force and effect until the payment in full of
all Obligations and each Pledgor’s satisfaction in full of all obligations
under each Document (including, without limitation, this Agreement), (ii) be
binding upon each Pledgor, its successors and assigns, and (iii) inure to
the benefit of, and be enforceable by, the Noteholder and its successors,
transferees and assigns.


 


(b)           Upon
the payment in full of all Obligations, the security interest granted hereby
shall terminate and all rights to the Pledged Collateral shall revert to the
respective Pledgor.  Upon any such
termination, the Noteholder will, at the Pledgors’ joint and several expense,
return to each Pledgor such of such Pledged Collateral as shall not have been
sold or otherwise applied pursuant to the terms hereof and execute and deliver
to each Pledgor such documents as such Pledgor shall reasonably request to
evidence such termination.


 


SECTION 15.         Governing
Law; Terms.  THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW, EXCEPT TO THE
EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. ANY
ACTION, SUIT OR PROCEEDING INITIATED BY ANY PARTY HERETO AGAINST ANY OTHER
PARTY HERETO UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT IN ANY
STATE OR FEDERAL COURT IN NEW YORK COUNTY, STATE OF NEW YORK.  TO THE EXTENT IT MAY LEGALLY DO SO, EACH
PARTY HERETO SUBMITS ITSELF TO THE EXCLUSIVE JURISDICTION OF ANY SUCH COURT,
WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE,
ANY


 


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CLAIMS OF FORUM NON CONVENIENS OR THAT THE VENUE OF ANY SUCH ACTION,
SUIT OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR ANY DOCUMENT OR INSTRUMENT
REFERRED TO HEREIN MAY NOT BE LITIGATED IN SUCH COURT.


 


SECTION 16.         JOINDER;
ETC


 


(a)           It
is understood and agreed that any person or entity that desires to become a
Pledgor hereunder, or is required to execute a counterpart of this Agreement
after the date hereof pursuant to the requirements of any Document, shall
become a Pledgor hereunder by (x) executing a Joinder Agreement in form
and substance satisfactory to the Pledgee, (y) delivering supplements to
such exhibits and annexes to such Documents as the Pledgee shall reasonably
request and/or set forth in such joinder agreement and (z) taking all actions
as specified in this Agreement as would have been taken by such Pledgor had it
been an original party to this Agreement, in each case with all documents
required above to be delivered to the Pledgee and with all documents and
actions required above to be taken to the reasonable satisfaction of the
Pledgee.


 


(b)           For
the avoidance of doubt, each Pledgor and the Pledgee hereby acknowledge and
agree that this Agreement shall be (x) a “Related Agreement” under, and as
defined in, the 2004 Securities Purchase Agreement and (y) an “Ancillary
Agreement” under, and as defined in, the 2005 Security Agreement.


 


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IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly executed and delivered as of the date first above written.


 


	
   

  	
  PLEDGORS:

  
	
   

  	
   

  
	
   

  	
  Time
  America, Inc., a Nevada corporation

  
	
   

  	
   

  
	
   

  	
  Address
  for Notices:

  
	
   

  	
  8840
  East Chaparral Road, Suite 100

  
	
   

  	
  Scottsdale,
  Arizona 85250

  
	
   

  	
  Attention:
  Craig J. Smith, Chief Financial Officer

  
	
   

  	
  Facsimile:
  (480) 967-5444

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Time
  America, Inc., an Arizona corporation

  
	
   

  	
   

  
	
   

  	
  Address
  for Notices:

  
	
   

  	
  8840
  East Chaparral Road, Suite 100

  
	
   

  	
  Scottsdale,
  Arizona 85250

  
	
   

  	
  Attention:
  Craig J. Smith, Chief Financial Officer

  
	
   

  	
  Facsimile:
  (480) 967-5444

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  NOTEHOLDER:

  
	
   

  	
   

  
	
   

  	
  Laurus
  Master Fund, Ltd.,

  
	
   

  	
  a
  Cayman Islands company

  
	
   

  	
   

  
	
   

  	
  Address
  for Notices:

  
	
   

  	
  c/o
  M&C Corporate Services Limited

  
	
   

  	
  P.O. Box
  309 GT

  
	
   

  	
  Ugland
  House

  
	
   

  	
  South
  Church Street

  
	
   

  	
  George
  Town

  
	
   

  	
  Grand
  Cayman, Cayman Islands

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


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SCHEDULE A


 


Attached to and forming a part of that certain 

Stock Pledge Agreement dated March 22, 2004, and amended and restated June 23,
2005 by and between


Time America, Inc., a Nevada corporation, the other pledgors party
thereto and 

Laurus Master Fund, Ltd., a Cayman Island company


 


Pledged Securities


 


	
  Pledgor

  	
   

  	
  Class of Security

  	
   

  	
  Certificate

  No(s) (if any)

  	
   

  	
  Number

  of Shares (Units)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Time America, Inc.,
  a

  Nevada corporation

  	
   

  	
  Common Stock of
  Time America, Inc., an Arizona corporation

  	
   

  	
   

  	
   

  	
  9,314,445 Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Time America, Inc.,
  an

  Arizona corporation

  	
   

  	
  None