c51356_ex10-3.htm -- Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing








PLEDGE AND SECURITY AGREEMENT


          PLEDGE AND SECURITY AGREEMENT (this “Agreement”), dated November 15, 2007, made by and among
Fearless International, Inc. (the “Company”) and the holders of Company’s common stock signatory hereto (collectively, the “Pledgors”) in favor of Feldman Weinstein & Smith LLP (the “Agent”) and each of the holders of the Company’s Secured
Promissory Notes due, unless required earlier pursuant to the terms therein, March 15, 2008 (collectively, the “Pledgees”). 


W I T N E S S E T H:


          WHEREAS, Pledgees have agreed, severally and not jointly, to lend to the Company, and the Company has agreed to borrow from the Pledgees, up to an aggregate of
$600,000 pursuant to the terms and conditions set forth in Secured Promissory Notes of the Company (the “Notes”); 


          WHEREAS, pursuant to the provisions of the Notes, and as a condition to the obligation of the Pledgees to lend thereunder, the Pledgors, as principals, employees and
shareholders of the Company, have agreed to make the pledge contemplated by this Agreement in order to induce Pledgees to perform their obligations under the Notes; 


           WHEREAS, as a condition to the obligation of the Pledgees to lend pursuant to the Notes, the Company agrees to undertake such action
contemplated by this Agreement in order to induce Pledgees to perform their obligations under the Notes; 


          WHEREAS, Pledgors own the shares of common stock of the Company (the “Common Stock”), set forth
opposite the Pledgors’ names on Schedule A attached hereto; 


          WHEREAS, terms used but not otherwise defined in this Agreement that are defined in Article 9 of the Uniform Commercial Code in effect in the State of New York at that
time (whether or not the UCC applies to the affected Pledged Collateral) (the “UCC”) shall have the meanings ascribed to them in the UCC; and 


          NOW, THEREFORE, in consideration of the premises, covenants and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows: 


Pledge and Security Interest. Each Pledgor hereby unconditionally and irrevocably pledges, grants and hypothecates to the Pledgees, and grants to the Pledgees a continuing first priority security
interest in, a first lien upon and a right of set-off against, all of its respective rights, titles and interests of whatsoever kind and nature in (the “Security Interest”), and to
secure the 












complete and timely payment, performance and discharge in
full, as the case may be, of all of the obligations pursuant to the Notes, the
following (collectively, the “Pledged Collateral”):
the shares of Common Stock owned by such Pledgor and set forth on Schedule
A attached hereto (the “Pledged
Shares”), 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 Shares; and all proceeds
of any and all of the foregoing Pledged Collateral, in whatever form (including,
without limitation, proceeds that constitute property of the types described
above).


  Security for Obligations.
    This Agreement secures the payment and performance of the following obligations
    (collectively, the “Obligations”):
    all present and future indebtedness, obligations, covenants, duties and liabilities
    of any kind or nature of the Company to the Pledgees now existing or hereafter
    arising under or in connection with this Agreement or the Notes (collectively,
  the “Transaction Documents”). 

  Delivery of Pledged Collateral.
    On or before November 23, 2007, all certificates representing or evidencing
    the Pledged Shares, in suitable form for transfer by delivery, or accompanied
    by instruments of transfer or assignment duly executed in blank, are being
    deposited with and delivered to the Agent, as collateral agent for the Pledgees.
    The Agent shall have the right, at any time after the occurrence of an Event
    of Default (as hereinafter defined)(unless waived in writing by the Pledgees),
    without notice to the Pledgor, to transfer to or to register in the name
    of the Pledgees or their nominees any or all of the Pledged Collateral. In
    addition, the Agent shall have the right at any time after the occurrence
    of an Event of Default (unless waived in writing by the Pledgees), to exchange
    certificates or instruments representing or evidencing Pledged Collateral
  for certificates or instruments of smaller or larger denominations.


  Representations and Warranties.
        Each Pledgor, severally and not jointly with the other Pledgors, represents
        and warrants as follows: Such Pledgor is the legal, record and beneficial
    owner of the Pledged Collateral owned by such Pledgor, free and clear of any
    lien, security interest, restriction, option or other charge or encumbrance
    (collectively, “Liens”).
        The pledge of the Pledged Collateral and the grant of the Security Interest
        pursuant to this Agreement creates a valid and perfected first priority
    security interest in the Pledged Collateral, securing payment and performance
    of the Obligations. Except for the filing of financing statements pursuant
    to the UCC with the proper filing and recording agencies in the jurisdictions
    indicated on Schedule B,
    attached hereto, no consent of any other person or entity and no authorization,
    approval, or other action by, and no notice to or filing with, any governmental
    authority or regulatory body is required (i) for the pledge by the Pledgor
    of the Pledged Collateral pursuant to this Agreement or for the execution,
    delivery or performance of this Agreement by the Pledgor, (ii) for the perfection
    or maintenance of the security interest created hereby, or (iii) for the exercise
    by the Agent of the voting or other rights provided for in this Agreement or
    the remedies in respect of the Pledged Collateral pursuant to this Agreement
    (except as may be required in connection with any disposition of any portion
    of the Pledged Collateral by laws affecting the offering and sale of securities
    generally). There are no conditions precedent to the effectiveness of this
    Agreement that have not been satisfied or waived. Effective on the date of
    execution of this Agreement, such Pledgor hereby authorizes the Agent to file
    one or more financing statements under the UCC with respect to the Security
    Interest with 


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the proper filing and recording agencies in the jurisdictions
indicated on Schedule B attached
hereto, and in such other jurisdictions as may be requested by the Pledgees.
Such Pledgor will not transfer, pledge, hypothecate, sell or otherwise dispose
of any of the Pledged Collateral without the prior written consent of the Pledgees.
Such Pledgor shall promptly execute and deliver to the Pledgees such further
assignments, security agreements, financing statements or other instruments,
documents, certificates and assurances and take such further action as the Pledgees
may from time to time request and may in its sole discretion deem necessary to
perfect, protect or enforce its security interest in the Pledged Collateral.
All information heretofore, herein or hereafter supplied to the Pledgees by or
on behalf of such Pledgor with respect to the Pledged Collateral is accurate
and complete in all material respects as of the date furnished.


  Further Assurances. Each
  Pledgor, severally and not jointly with the other Pledgors, agrees that at any
  time and from time to time, at the expense of such Pledgor, the Pledgor shall
  promptly execute and deliver all further instruments and documents, and take
  all further action, that may be necessary or desirable, or that the Agent and/or
  the Pledgees may reasonably request, in order to perfect and protect any security
  interest granted or purported to be granted hereby or to enable the Agent and/or
  Pledgees to exercise and enforce their rights and remedies hereunder with respect
  to any Pledged Collateral. The Company agrees that at any time and from time
  to time, at the expense of the Company, the Company shall promptly execute and
  deliver all further instruments and documents, and take all further action, that
  may be necessary or desirable, or that the Pledgees may reasonably request. 

  Voting Rights; Dividends; Etc.

  So long as no Event of Default shall have occurred (unless such Event of Default is waived in  writing by the Pledgees):  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; provided, however, that such Pledgor shall not exercise or refrain from exercising any such right if, in the reasonable judgment of such Pledgees, such action would have a material adverse effect on the Security Interest or the rights and remedies of the Pledgees hereunder; provided, further, that such Pledgor shall give the Pledgees at least ten (10) days’ prior written notice of the manner in which it intends to exercise, or the reasons for refraining from exercising, any such right.  Each Pledgor shall be entitled to receive and retain any and all cash dividends and interest paid in respect of such Pledgor’s Pledged Collateral.  Upon and after the occurrence of any Event of Default (unless such Event of Default is waived in writing by the Pledgees):  All rights of each Pledgor to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise pursuant to Section 6(a)(i) and to receive the dividends and interest payments which 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 Agent who shall thereupon have the sole right to exercise or refrain from exercising such voting and other consensual rights and to receive and hold as Pledged Collateral such dividends and interest payments.  

All dividends and interest payments which
    are received by the Pledgors contrary to the provisions of paragraph (i)
    of this Section 6(b) shall be received in trust for the benefit of the


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Pledgees, shall be segregated from other funds of the applicable
Pledgor and shall be forthwith paid over to the Agent as Pledged Collateral in
the same form as so received (with any necessary endorsement). 


  Transfers and Other Liens; Additional Shares.
  During the term of this Agreement, the Pledgor agrees that it shall not (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 upon or with respect to any of the Pledged Collateral, except
  for the security interest granted pursuant to this Agreement.

  Agent Appointed Attorney-in-Fact. 


     (a) Effective only upon an Event of Default
      (unless such Event of Default is waived in writing by the Pledgees), the
      Pledgors hereby appoints the Agent as the Pledgors’ attorney-in-fact, with full authority in the place and stead of, and  in the name of, the Pledgors or otherwise, from time to time in the Agent’s discretion to  take any action and to execute any instrument which the Agent may deem necessary or  desirable to accomplish the purposes of this Agreement, including, without limitation, to  receive, endorse and collect all instruments made payable to the Pledgors representing  any dividend, interest payment or other distribution in respect of the Pledged Collateral or any part thereof and to give full discharge for the same.

      (b) Each Pledgor,
    severally and not jointly, authorizes the Agent, and do hereby make, constitute
    and appoint the Agent and its respective officers, agents, successors or
    assigns with full power of substitution, as the Pledgors’ true and lawful  attorney-in-fact, with power, in the name of the Pledgees or the Pledgors, to, after the  occurrence and during the continuance of an Event of Default, (i) endorse any checks,  drafts, money orders or other instruments of payment (including payments payable under  or in respect of any policy of insurance) in respect of the Pledged Collateral that may  come into possession of the Pledgees; (ii) to sign and endorse any financing statement  pursuant to the UCC or any invoice, freight or express bill, bill of lading, storage or  warehouse receipts, drafts against Pledgors, assignments, verifications and notices in  connection with accounts, and other documents relating to the Pledged Collateral; (iii) to  pay or discharge taxes, liens, security interests or other encumbrances at any time levied  or placed on or threatened against the Pledged Collateral; (iv) to demand, collect, receipt  for, compromise, settle and sue for monies due in respect of the Pledged Collateral; (v)  generally, to do, at the option of the Pledgees, and at the expense of the Pledgors,  severally and jointly, at any time, or from time to time, all acts and things which the  Pledgees deem necessary to protect, preserve and realize upon the Pledged Collateral and  the Security Interest granted herein in order to effect the intent of this Agreement all as  fully and effectually as the Pledgors might or could do; and (vi) in the event of the  bankruptcy of such Pledgor, to appoint a receiver or equivalent person to marshall such  Pledgor’s assets, and such Pledgor hereby ratifies all that said attorney shall lawfully do  or cause to be done by virtue hereof. This power of attorney is coupled with an interest  and shall be irrevocable for the term of this Agreement and thereafter as long as any of  the Obligations shall be outstanding.  

     (c) Each Pledgor
    hereby irrevocably appoints the Agent as such Pledgor’s  attorney-in-fact, with full authority in the place and stead of such Pledgor and in the name of such Pledgor, from time to time in the Agent’s
          discretion, to file in its sole discretion, 


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of one or more financing or continuation statements and amendments
thereto, relative to any of the Collateral without the signature of such Pledgor
where permitted by law.


  Pledgee May Perform. If any
  Pledgor fails to perform any agreement contained herein, the Agent and/or Pledgees
  may itself perform, or cause performance of, such agreement, and the expenses
  of the Agent and/or Pledgees incurred in connection therewith shall be payable
  by such Pledgor under Section 14 hereof. 

  The Agent’s Duties. The duties and rights of the Agent are as set forth on Annex A attached  hereto and incorporated herein by reference. Any fees of the Agent for its services hereunder  shall be paid by the Company. The powers conferred on the Agent hereunder are solely to  protect the interests of the Pledgee in the Pledged Collateral and shall not impose any duty upon  the Agent to exercise any such powers. Except for the safe custody of any Pledged Collateral in  its possession and the accounting for moneys actually received it hereunder, neither the Agent  nor Pledgee shall have any duty as to any Pledged Collateral, as to ascertaining or taking action  with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any  Pledged Collateral, whether or not such party has or is to have knowledge of such matters, or as  to the taking of any necessary steps to preserve rights against any parties or any other rights  pertaining to any Pledged Collateral. The Agent and Pledgee shall be deemed to have exercised  reasonable care in the custody and preservation of any Pledged Collateral in its possession if  such Pledged Collateral is accorded treatment substantially equal to that which such party  accords its own property. 

  Event of Default. The occurrence of any of the following events shall constitute an event of  default under this Agreement (each, an “Event of Default”):  The failure of any Pledgor to observe, perform or comply with any act, duty, covenant,  agreement or obligation under this Agreement, which is not cured within ten business days  following written notice by Agent to such Pledgor;  If any of the representation or warranty of any Pledgor set forth in this Agreement shall be  breached or shall be untrue or incorrect in any material respect, and is not cured within ten  business days following written notice by Agent to such Pledgor; The filing of any financing statement with regard to any of the Pledged Collateral other than  pursuant to this Agreement, or the attachment of any additional Lien to any portion of the  Pledged Collateral in favor of any Person other than the Pledgees; or  If any event of default (and expiration of any cure period) shall occur (unless such event of  default is waived in writing by the Pledgees) under any of the other Transaction Documents. 

  Cross-Default; Cross-Collateralization. The Pledgors acknowledges and agrees that any default  under the terms of this Agreement shall constitute a default by the Company under the Notes, and that any event of default (following expiration of any applicable cure period) under the Notes shall constitute a default under this Agreement. 


Remedies upon Event of Default. Upon and after the occurrence of any Event of Default: The Agent may exercise in respect of the Pledged Collateral, in addition to other rights and remedies provided
for herein or otherwise available to the Agent (including, without limitation, the vesting in the Agent pursuant to Section 6(b)(i) of the sole right to exercise voting rights pertaining to the Pledged Collateral, including, without limitation,
voting rights with respect to the sale of assets of the issuer of such Pledged Collateral), all the rights and remedies of a secured party on default under the UCC, and may also, without notice except as specified below


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and subject to the applicable securities laws, sell the Pledged
Collateral or any part thereof at public or private sale, at any exchange, broker’s
board or at any of the Agent’s offices or  elsewhere, for cash, on credit
or for future delivery, and upon such other terms as the Agent may deem commercially
reasonable. Each Pledgor agrees that, to the extent notice of sale shall be required
by law, at least ten (10) 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 Agent shall not be obligated to make
any sale of Pledged Collateral regardless of notice of sale having been given.
The Agent 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. Each Pledgor acknowledges
and agrees that the Pledged Collateral consisting of the Pledged Shares, and/or
any other shares of common stock of the Company, is of a type customarily sold
on a recognized market, and accordingly that no notice of the sale thereof need
be given. In addition, Agent may transfer all of the Pledged Collateral to Pledgees,
who may hold all of such Pledged Collateral as payment in full of the Obligations

Any cash held by the Agent or the Pledgees
    as Pledged Collateral and all cash proceeds received by the Agent or the
    Pledgees 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 Agent or the Pledgees, be held as collateral for, and/or then or at any
    time thereafter be applied (after payment of any amounts payable pursuant
    to Section 14) in whole or in part against, all or any part of the Obligations.
  Any surplus of such cash or cash proceeds held by the Agent or the Pledgees
    and remaining after payment in full of all the Obligations shall be paid
    over to the Pledgors, pro-rata, or to whomsoever may be lawfully entitled
    to receive such surplus.


  Expenses. The Pledgors
  and the Company, severally and jointly, shall upon demand pay to the Agent
  and/or the Pledgees the amount of any and all reasonable expenses, including
  reasonable attorneys’ fees and expenses and the reasonable fees and expenses
  of any experts and agents, which the Agent and/or Pledgees may incur in connection
  with (a) the administration of this Agreement, (b) the custody or preservation
  of, or the sale of, collection from, or other realization upon, any of the
  Pledged Collateral, (c) the exercise or enforcement of any of the rights of
  the Agent and/or Pledgees hereunder or (d) the failure by any Pledgor to perform
  or observe any of the provisions hereof.


  Continuing Security Interest; Termination.
    This Agreement shall create a continuing security interest in the Pledged Collateral
    and shall remain in full force and effect until the indefeasible payment in
    full of the Obligations. Upon the indefeasible payment in full of the Obligations,
    the security interest granted hereby shall terminate and all rights to the
    Pledged Collateral shall revert to the Pledgors. Upon any such termination,
    the Agent shall, at such Pledgors’ expense,  return, pro-rata, to the
    Pledgors such of the Pledged Collateral as shall not have been sold or otherwise
    applied pursuant to the terms hereof and execute and deliver to such Pledgors
    such documents as such Pledgors shall reasonably request to evidence such termination. 

  Governing Law; Terms. For the convenience of the Agent, this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to  principles of conflict of laws. Each Pledgor agrees to submit to the in personam jurisdiction of
       the state and federal courts situated within the City of New York, State of New York with regard  to any controversy arising out of or relating to this Agreement. Unless otherwise defined herein,  terms defined in Article 9 of the UCC are used herein as therein defined. 


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Notice. All notices and other communications hereunder shall be in writing and shall be deemed  to have been received when delivered personally (which shall include, without limitation, via  express overnight courier) or if mailed, three (3) business days after having been mailed by  registered or certified mail, return receipt requested, postage prepaid, to the addresses of the  parties as set forth on the signature pages attached hereto. 

Waivers. 


  Waivers. Each Pledgor waives
    any right to require the Pledgees to (i) proceed against any person, (ii) proceed
    against any other collateral under any other agreement, (iii) pursue any other
    remedy, or (iv) make presentment, demand, dishonor, notice of dishonor, acceleration
    and/or notice of non-payment. 

  Waiver of Defense.
    No course of dealing between the Pledgors and the Pledgees, nor any failure
    to exercise nor any delay in exercising on the part of the Agent or Pledgees,
    any right, power, or privilege under this Agreement or under any of the other
    Transaction Documents shall operate as a waiver. No single or partial exercise
    of any right, power, or privilege under this Agreement or under any of the
    other Transaction Documents shall preclude any other or further exercise
    of such right, power, or privilege or the exercise of any other right, power,
  or privilege.


  Rights Are Cumulative.
    All rights and remedies of the Agent and the Pledgees with respect to the Pledged
    Collateral, whether established by this Agreement, the other Transaction Documents
    or by law, shall be cumulative and may be exercised concurrently or in any
  order. 

  Indemnity.
    Each Pledgor, jointly and severally, agrees to indemnify and hold harmless
    the Agent, the Pledgees and their respective heirs, successors and assigns
    against and from all liabilities, losses and costs (including, without limitation,
    reasonable attorneys’ fees) arising out  of or relating to the taking
    or the failure to take action in respect of any transaction effected under
    this Agreement or in connection with the lien provided for herein, including,
    without limitation, any and all excise, sales or other taxes which may be
    payable or determined to be payable with respect to any of the Pledged Collateral,
    except to the extent resulting from their gross negligence or intentional
    misconduct. The liabilities of the Pledgors under this Section 20 shall survive
  the termination of this Agreement. 


  Severability. The provisions
    of this Agreement are severable. If any provision of this Agreement is held
    invalid or unenforceable in whole or in part in any jurisdiction, then such
    invalidity or unenforceability shall affect only such provision, or part thereof,
    in such jurisdiction, and shall not in any manner affect such provision or
    part thereof in any other jurisdiction, or any other provision of this Agreement
  in any jurisdiction.  

  Counterparts.
    This Agreement may be executed in several counterparts, each of which shall
    be considered an original, but all of which together shall constitute one
  and the same instrument. 


  Amendments; Entire Agreement.
    This Agreement is subject to modification only by a writing signed by the parties.
    To the extent any provision of this Agreement conflicts with any provision
    of the Notes, the provision giving Pledgees greater rights or remedies shall
    govern, it being understood that the purpose of this Agreement is to add to,
    and not detract from, the rights granted to Pledgees under the Notes. This
    Agreement and the other Transaction Documents constitute the entire agreement
  of the parties with respect to the subject matter of this Agreement.

  Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the  parties hereto and their respective heirs, executors, legal representatives, successors and assigns; 

  provided, however, that no Pledgor may, without the prior written consent of the Pledgees,  assign or delegate any rights, powers, duties or obligations hereunder, and any such purported  assignment or delegation without such consent shall be null and void. 


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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

 

 

 

 

 

 


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           IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date first above written. 

	 	 	PLEDGORS:
	 	 	 
	 

		 
		 

	
	 

		 
		
Jeffrey Binder
	
	
Address for Notice:
		 
		 

	
	 	 	 
	 	 	 
	 	 	 
	 

		 
		
THE COMPANY:
	
	 	 	 
	 

		 
		
FEARLESS INTERNATIONAL, INC.
	
	 	 	 
	 	 	 
	 

		 
		
By:
		 
	 

		 
		
Name:
	
	 

		 
		
Title:
	





AGENT:


FELDMAN WEINSTEIN & SMITH LLP

 

	
By:  
		 
	 
	
Name:
	
	 
	
Title:
	




 


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Address for Notice:



Robert Charron

Feldman Weinstein & Smith LLP  

The Graybar Building  

420 Lexington Avenue  

New York, New York 10170-0002 

Direct: (212) 931-8704 

 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 

SIGNATURE PAGE FOR PLEDGEES FOLLOWS] 

 

 

 

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[PLEDGEE SIGNATURE PAGES TO FRLE PLEDGE AND SECURITY AGREEMENT]


Name of Pledgee: _________________________________


Signature of Authorized Signatory of Pledgee: ____________________________

 Name of Authorized Signatory: ________________________________

 Title of Authorized Signatory:
_______________________________

 E-mail Address of Authorized Signatory:
  _______________________



 

 

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SCHEDULE A 



Pledged Shares 



___________ shares of Fearless International, Inc. certificated
as follows: 

	
Pledgor:
		 
		
Number of Shares:
		 
		
Certificate Number:
	
	 

		 
		
Jeffrey Binder
		 
		 

	



 

 

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SCHEDULE B

 

 

 

 

 

 

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