Pledge and Security Agreement - E-City Software Inc. and On Alert Systems Inc.
PLEDGE AND SECURITY AGREEMENT
This Pledge and Security Agreement (this "Agreement") is made as of
this 20th day of August, 2003, by E-City Software, Inc. a Nevada Corporation
(the "Pledgor"), in favor of On Alert Systems, Inc. a Nevada Corporation.
W I T N E S S E S T H :
Whereas, Pledgee has agreed to loan to Pledgor the principal amount of
$167,378.94, for the payment and or assumption of the debts listed on the
attached Exhibit A. Repayment of which is evidenced by that certain Secured
Recourse Promissory Note (the "Note"), dated as of even date herewith, and
attached hereto as Exhibit B.
Whereas, Pledgor is the record and beneficial owner of certain assets
listed on the 10QSB showing the unaudited financials as of 06-30-03 (the
"Assets") of E-City Software, Inc. (the "Company dated as of even date herewith,
and attached hereto as Exhibit C, hereto, together with all proceeds and
substitutions of any thereof, all interest paid thereon, and all other cash and
noncash proceeds of the foregoing (the "Pledged Collateral").
Whereas, the Pledgee has required as a condition of entering into the
Note that Pledgor deliver this Pledge Agreement to secure the obligations of
Pledgor under the Note.
N O W, T H E R E F O R E,
Pledgor and the Company agree as follows:
1. Pledge and Delivery of Collateral. The Pledgor hereby pledges and
grants to the Pledgee a security interest in the Pledged Collateral, as security
for the prompt performance of all of Pledgor's obligations under the Note (the
"Obligations").
2. Representations, Warranties And Covenants. The Pledgor represents
and warrants to and covenants with the Pledgor that:
(a) The Pledged Collateral is owned by the Pledgor free and clear of
any security interests, liens, encumbrances, options or other restrictions
created by the Pledgor, except for the security interest and rights listed in
Exhibit C and the Company created hereby;
(b) The Pledgor has full power and authority to, and does hereby,
create a first lien on the Pledged Collateral in favor of the Pledgee, and no
disability or contractual obligation exists that would prohibit the Pledgor from
pledging the Pledged Collateral pursuant to this Agreement, and the Pledgor will
not assign, create or permit to exist any other claim to, lien or encumbrance
upon, or security interest in any of the Pledged Collateral; and
(c) The Pledged Collateral is not the subject of any present or
threatened suit, action, arbitration, administrative or other proceeding, and
the Pledgor knows of no reasonable grounds for the institution of any such
proceedings except as herein stated in Exhibit C.
3. Events of Default. Each of the following shall constitute an event
of default (singularly an "Event of Default"; collectively, "Events of Default")
hereunder:
(a) The occurrence of an Event of Default under the Note; or
(b) The breach of any provision of this Agreement by the Pledgor or the
failure by the Pledgor to observe or perform any of the provisions of this
Agreement.
4. The Pledgee's Remedies Upon Default. Upon the occurrence of an Event
of Default, the Pledgee shall have the right to exercise all such rights granted
to, and as, a "Secured Party" under the Uniform Commercial Code as in force in
Louisiana, as the Pledgee, in its sole judgment, shall deem necessary or
appropriate, including the right to liquidate the Pledged Collateral and apply
the proceeds thereof to reduce the principal amount outstanding under the Note.
After the disposal of any of the Pledged Collateral, the Pledgee may deduct all
reasonable legal and other expenses and attorney's fees for protecting its
interest and enforcing its remedies under the Note and this Agreement, and the
Pledgee shall apply the residue of the proceeds to, or hold as a reserve
against, the Obligations in such manner as the Pledgee in its reasonable
discretion shall determine, and shall pay the balance, if any to the Pledgor.
5. Notices.
(a) Any notice, request, instruction or other document required by the
terms of this Agreement to be given to any other Party hereto shall be in
writing and shall be given either
(i) by telephonic facsimile, in which case notice shall be
presumptively deemed to have been given at the date and time displayed
on the sender's transmission confirmation receipt showing the
successful receipt thereof by the recipient;
(ii) by hand delivery or Federal Express or other method in
which the date of delivery is recorded by the delivery service, in which case
notice shall be presumptively deemed to have been given at the time that records
of the delivery service indicate the writing was delivered to the addressee;
(iii) by prepaid telegram, in which case notice shall be
presumptively deemed to have been given at the time that the records of the
telegraphic agency indicate that the telegram was telephoned or delivered to the
recipient or addressee, as the case may be; or
(iv) by U.S. mail to be sent by registered or certified mail,
postage prepaid, with return receipt requested, in which case notice shall be
presumptively deemed to have been given forty-eight (48) hours after the letter
was deposited with the United States Postal Service.
(b) Notice shall be sent:
(i) If to the Pledgor, to:
William C. Robinson., CEO
c/o E-City Software, Inc.
1600 Canal Street
Suite 1418
New Orleans, LA 70112
Telephone Number: (504) 524-5425
Facsimile Telephone Number: (504) 524-5424
with a copy (which shall not constitute notice) to:
Guy K. Stewart, Jr., Esq.
1701 South Flagler Drive
Number 1408
West Palm Beach, Florida 33401
Telephone Number: (561) 659-1810
Facsimile Telephone Number: (561) 659-3888
(ii) If to the Company, to:
William C. Robinson., CEO
c/o E-City Software, Inc.
1600 Canal Street
Suite 1418
New Orleans, LA 70112
Telephone Number: (504) 524-5425
Facsimile Telephone Number: (504) 524-5424
with a copy (which shall not constitute notice) to:
Guy K. Stewart, Jr., Esq.
1701 South Flagler Drive
Number 1408
West Palm Beach, Florida 33401
Telephone Number: (561) 659-1810
Facsimile Telephone Number: (561) 659-3888
(iii) If to the Pledgee, to:
On Alert Systems, Inc.
C/O William C. Robinson, CEO
5147 South Harvard Ave.
Suite 138
Tulsa, OK 70112
Telephone Number: (918) 493-2069
Facsimile Telephone Number: (918) 493-6234
(iv) or to such other address as a Party may have specified in
writing to the other Parties using the procedures specified above in this
Section.
7. Applicable Law; Resolution of Disputes; Venue; Waiver of Jury Trial.
(a) This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Louisiana, without giving
effect to the principles of conflicts of Law thereof.
(b) The Parties hereto irrevocably agree and consent that all disputes
concerning this Agreement and the Note shall be resolved solely and exclusively
in the state or federal courts in New Orleans, Louisiana.
(c) In the event any party to this Agreement commences any litigation,
proceeding or other legal action in connection with or relating to this
Agreement, the Note, or any matters described or contemplated herein or therein,
with respect to any of the matters described or contemplated herein or therein,
the Parties to this Agreement hereby:
(i) agree as an alternative method of service to service of
process in any legal proceeding by mailing of copies thereof to such party at
its address set forth here in for communications to such party;
(ii) agree that any service made as provided herein shall be
effective and binding service in every respect; and
(iii) agree that nothing herein shall affect the rights of any
party to effect service of process in any other manner permitted by Law; and
(iv) EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY JURY IN
ANY DISPUTE IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, ANY
RELATED AGREEMENT OR ANY MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR
THEREIN, AND AGREES TO TAKE ANY AND ALL ACTION NECESSARY OR APPROPRIATE
TO EFFECT SUCH WAIVER.
8. General Provisions.
(a) Successors and Assigns. This Agreement shall bind and inure to the
benefit of the respective successors and permitted assigns of each of the
Parties; provided, however, that neither this Agreement nor any rights hereunder
may be assigned by the Pledgee without the Pledgor's prior written consent,
which consent may be granted or withheld in the Pledgor's sole discretion.
(b) Time Of Essence. Time is of the essence for the performance of all
obligations set forth in this Agreement.
(c) Severability Of Provisions. Each provision of this Agreement shall
be severable from every other provision of this Agreement for the purpose of
determining the legal enforceability of any specific provision.
(d) Amendments In Writing, Integration. This Agreement and the Note
constitute the entire agreement and understanding between the Parties hereto and
thereto in respect of the subject matter contained herein and therein, and there
are no restrictions, promises, representations, warranties, covenants, or
understandings with respect to the subject matter hereof or thereof, other than
those expressly set forth or referred to herein or therein; provided, however,
that the Note is hereby incorporated herein or therein by reference.
This Agreement and the Note supersede all prior agreements and
understandings between the Parties hereto and thereto with respect to the
subject matter hereof and thereof. No statement, representation, warranty,
covenant or agreement of any kind not expressly set forth in this Agreement or
the Related Agreements shall effect, or be used, to interpret, change or
restrict, the express terms of this Agreement or the Related Agreements.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, shall be deemed to be an original, and all of
which, when taken together, shall constitute but one and the same Agreement.
(f) Survival. All covenants, representations and warranties made in
this Agreement shall continue in full force and effect so long as any
Obligations remain outstanding.
SIGNATURES BEGIN ON THE FOLLOWING PAGE
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
THE PLEDGOR:
E- City Software, Inc.
By: /s/ William C. Robinson
William C. Robinson, CEO
THE COMPANY:
E-City Software, Inc.
By: /s/ William C. Robinson
William C. Robinson, CEO
THE PLEDGEE:
On Alert Systems, Inc.
By: /s/ William C. Robinson
William C. Robinson, CEO
<PAGE>
EXHIBIT A
PAYABLES AND ASSUMED OBLIGATIONS
1.Guy Stewart $ 25,000.00
2.Jonathan Dariyanani $ 10,000.00
3. Kirk Roberts $ 3,000.00
4. Hansen, Barnett & Maxwell $ 49,134.97
5. Canada Customs and Revenue Agency $ 47,337.00
7. Walter J. Wiley $ 32,906.97
Total $ 167,378.94
EXHIBIT B
RECOURSE PROMISSORY NOTE
Principal Amount: $ 167,378.94 Dated as of: August 20, 2003
FOR VALUE RECEIVED, the undersigned (the "Borrower") hereby promises to
pay to On Alert Systems, Inc. (the "Payee") the principal sum of $167,378.94
United States Dollars on January 20, 2003, together with interest on the unpaid
principal balance at the rate of 8 percentum per annum, together with fees,
costs, charges,.
This Note is entered into pursuant to a Pledge and Security Agreement
(the "Agreement"), between the Borrower and Lender (as therein defined as the
"Pledgor" and the "Pledgee") dated as of even date, which is incorporated herein
by reference in its entirety.
This note can have lump sum payments any time during the term of this
agreement.
Any additional advances made will be added on the existing balance.
This Note shall be immediately due and payable upon the completion of
any funding over $250,000.
This Note shall be immediately due and payable upon the occurrence of
any of the Events of Default as set forth in the Agreement.
This Note is of limited negotiability. The Payee may not negotiate this
Note without the prior written consent of the Borrower, which consent may be
withheld in the Borrower's sole discretion. Any attempted assignment or
negotiation hereof except as provided for herein shall be null and void and of
no force and effect against the person attempting to assign or negotiate this
Note.
The Borrower waives presentment, protest and notice of dishonor and the
right to assert in any action or proceeding with regard to the Note any offset
or counterclaims which the Borrower may have. No failure or delay by the Payee
in exercising any right hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right preclude other or further exercises
thereof or the exercise of any other right. The Payee may extend the time of
payment of this Note, postpone the enforcement hereof, grant any other
indulgences and/or add or release any security for this Note or any party
primarily or secondarily liable hereon without affecting or diminishing the
Payee's right of recourse against the Borrower, which right is hereby expressly
reserved.
THE BORROWER:
E-City Software, Inc.
By: /s/ William C. Robinson
William C. Robinson, CEO
<PAGE>
EXHIBIT C
UNAUDITED FINANCIAL AS OF 6-30-2003
E-CITY SOFTWARE, INC.
CONSOLIDATED BALANCE SHEETS
June 30, March 31,
2003 2003 (1)
---------- -----------
ASSETS (unaudited)
Current assets:
Cash and cash equivalents..................................... $ 43 $ 174
Income taxes receivable....................................... 53,217 53,217
--------- ---------
Total current assets..................................... 53,260 53,391
Property and equipment, net..................................... 17,401 17,629
--------- ---------
Total assets.................................................... $ 70,661 $ 71,020
========= =========
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current liabilities:
Accounts payable.............................................. $ 86,858 $ 77,927
Accrued expenses.............................................. 72,211 68,407
Accrued income taxes.......................................... 6,048 5,989
--------- ---------
Total current liabilities................................ 165,117 152,323
--------- ---------
Total liabilities............................................... 165,117 152,323
Stockholders' deficit:
Common stock, $0.0001 par value, 50,000,000 shares
authorized, 45,130,000 and 10,130,000 shares issued and
outstanding respectively...................................... 4,513 1,013
Additional paid in capital...................................... 359,985 323,485
Accumulated deficit............................................. (440,898) (391,825)
Accumulated other comprehensive income (loss)................... (18,056) (13,976)
--------- ---------
Total stockholders' deficit (94,456) (81,303)
--------- ---------
Total liabilities and stockholders' deficit............... $ 70,661 $ 71,020
========= =========
--------------
(1) The balance sheet at March 31, 2003 has been derived from the audited
consolidated financial statements at that date, but does not include all the
information and footnotes required by generally accepted accounting
principles for complete financial statements.
See accompanying notes.
<PAGE>
5
E-CITY SOFTWARE, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
Three months ended
June 30,
--------------------------
2003 2002
-------- ---------
Sales........................................................... $ - $ -
Cost of Goods Sold.............................................. - -
-------- --------
Gross Profit........................................... - -
Operating Expenses
Sales and marketing............................................ - 25,060
General and administrative..................................... 49,073 124,347
------- -------
Total Operating Expenses..................................... 49,073 149,407
-------- --------
Income (loss) from operations................................... (49,073) (149,407)
Other Income (Loss)
Interest income................................................ - 850
Gain (loss) on foreign currency exchange....................... - (373)
-------- --------
Net Other Income (Loss)................................ - 477
-------- --------
Net Loss........................................................ (49,073) (148,930)
-------- --------
Net Income (Loss)............................................... $ (49,073) $(148,930)
========= ==========
Basic and Diluted Income (Loss) Per Share....................... $ (0.00) $ (0.01)
========= ==========
Shares used in computing basic and diluted net loss per share
applicable to common stockholders.............................. 24,745,385 10,130,000
========== ==========
See accompanying notes.
<PAGE>
6
E-CITY SOFTWARE, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
Three months ended June 30,
------------------------------------
2003 2002
-------- --------
Operating activities:
Net income (loss)............................................... $ (49,073) $(148,930)
Net cash from operating activities:
Foreign exchange (gain) loss.................................. - (373)
Depreciation and amortization................................. 1,770 9,975
Settlement expense............................................ 40,000 -
Changes in operating assets and liabilities:
Accounts receivable....................................... - 53,526
Related parties advances receivable....................... - 1,490
Work in process........................................... - 15,207
Prepaid expenses.......................................... - 8,724
Accounts payable and accrued expenses..................... 7,194 53,065
Related parties advances payable.......................... - (632)
--------- ---------
Net cash provided by (used in) operating activities.... (109) (7,948)
--------- ---------
Financing activities:
Principal payments of long term debt.......................... - (931)
--------- ---------
Net cash provided by (used in) financing activities.... - (931)
--------- ---------
Effect of exchange rate changes on cash................ (22) 2,710
--------- ---------
Net increase (decrease) in cash and cash equivalents............ (131) (6,169)
Cash and cash equivalents at beginning of period................ 174 13,397
--------- ---------
Cash and cash equivalents at end of period...................... $ 43 $ 7,228
========= =========
See accompanying notes.
<PAGE>
7
E-CITY SOFTWARE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
NOTE 1. BASIS OF PRESENTATION
The consolidated financial statements have been prepared by E-City
Software, Inc., pursuant to the rules and regulations of the Securities and
Exchange Commission and include the accounts of E-City Software, Inc. and its
wholly owned subsidiary (collectively "E-City" or the "Company"). Certain
information and footnote disclosures, normally included in financial statements
prepared in accordance with generally accepted accounting principles, have been
condensed or omitted pursuant to such rules and regulations. While in the
opinion of the Company, the unaudited financial statements reflect all
adjustments (consisting only of normal recurring adjustments) necessary for a
fair presentation of the financial position at June 30, 2003 and the operating
results and cash flows for the three months ended June 30, 2003 and 2002, these
financial statements and notes should be read in conjunction with the Company's
audited consolidated financial statements and notes for the year ended March 31,
2003 included in the Company's Annual Report on Form 10-KSB filed July 11, 2003
with the Securities and Exchange Commission. The consolidated balance sheet at
March 31, 2003 has been derived from audited financial statements as of that
date.
The accompanying financial statements have been prepared on a going concern
basis, which contemplates the realization of assets and the satisfaction of
liabilities in the normal course of business. During the three months ended June
30, 2003 the Company incurred a net loss of $49,703. During the three months
ended June 30, 2003, the Company had no revenues, and the accumulated deficit
totaled $440,898 as of June 30, 2003. These factors, among others, indicate that
the Company may be unable to continue as a going concern. The accompanying
financial statements do not include any adjustments relating to the carrying
amount and classification of recorded assets or the amount and classification of
liabilities that might be necessary should the Company be unable to continue as
a going concern.
The results of operations for the three months ended June 30, 2003 are not
necessarily indicative of results that may be expected for any other interim
period or for the full fiscal year ending March 31, 2003.
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation - The accompanying consolidated financial statements
include the accounts of E-City Software, Inc and it's wholly owned subsidiary.
Inter-company transactions and accounts have been eliminated in consolidation.
Business Condition -- Our only present prospect for revenue is the uncompensated
efforts of our chief executive officer, William Robinson. We have entered into a
strategic alliance agreement between E-City Software, Inc. and On Alert Systems,
Inc. Both companies have agreed to cooperate with each other to enhance the
mutual possibilities of sales relating to On Alert's exclusive marketing and
distribution agreement for the On Alert GDStm gunshot detection system and
E-City's computer mapping markets. The companies plan to explore the uses of
E-City's 3D mapping technology in the On Alert GDS technology being developed by
Synchros Technologies, Inc. of Tulsa, Oklahoma from a party related to William
Robinson, On Alert Systems, Inc., a Nevada corporation. Although Mr. Robinson
has some familiarity with this technology, we have not determined to what extent
existing E-City mapping technology may compliment the gunshot detection
technology as this would be a decision made by the developers, Synchros
Technologies, Inc. We intend over the next 12 months to focus on increasing our
cash position by means of a combination of the following: (i) the sale of equity
or debt securities in the company; and (ii) sales of our existing computer
mapping products through direct sales negotiated primarily by our chief
executive officer, William Robinson. No assurances can be given that the Company
will be successful in deriving cash flows and revenues from any of the above
methods.
Use of Estimates -- The preparation of financial statements in conformity with
generally accepted accounting principles in The United States of America
requires management to make estimates and assumptions that affect the reported
amounts of revenues and expenses during the reporting period. Actual results
could differ from those estimates.
Software Revenue -- Revenue from licenses of the interactive guides is
recognized when delivery is complete, and no significant obligations remain
unfulfilled by the Company and when collection of any remaining receivable is
probable. Payments collected prior to revenue recognition are accounted for as
deferred revenue.
<PAGE>
8
Contract Work In Progress -- In accordance with Financial Accounting Standards
Board ("FASB") Statement of Financial Accounting Standards ("SFAS") No. 86,
"Accounting for the Costs of Computer Software to be Sold, Leased or Otherwise
Marketed" development costs incurred in the research and development of new
software products to be sold, leased or otherwise marketed are expensed as
incurred until technological feasibility in the form of a working model has been
established. Subsequent costs to produce the computer software are accumulated
as an asset, "contract work in progress", and recorded as costs of goods sold
when revenue is recognized. Contract work in progress for projects that are not
expected to be included in costs of good sold during the twelve months following
the balance sheet date are recorded as long-term costs in the "other assets"
section of the balance sheet. Contract work in progress that is expected to be
recorded as costs of sales within the next twelve months is included in current
assets. As of June 30, 2003 and March 31, 2003 there were no projects in
process.
Foreign Currency Translation -- Monetary assets and liabilities which are
denominated in currencies other than Canadian Dollars are translated at the
exchange rate in effect at the balance sheet date. Revenue and expense items are
translated at rates of exchange prevailing on the transaction dates. All
exchange gains or losses are recognized currently in earnings.
For reporting purposes, the financial statements have been translated into
United States Dollars. Assets and liabilities are translated at the exchange
rate in effect on the balance sheet date. Revenue and expense items are
translated at an average exchange rate. Translation adjustments representing
translation gains or losses are recorded as a component of comprehensive income.
Basic and Diluted Income (Loss) Per Share - Basic income (loss) per common share
is computed by dividing net income (loss) by the weighted-average number of
common shares outstanding during the period. Diluted income (loss) per share is
calculated to give effect to potentially issuable common shares except during
income periods when those potentially issuable common shares would increase the
income per share. There were no potentially issuable shares at June 30, 2003 and
2001.
<PAGE>
9
NOTE 3 - LITIGATION
In May 2002 a former employee of the Company filed a suit claiming
non-performance under a severance agreement with the Company. The former
employee claims that the Company owes him $30,000 under a severance agreement
and $9,505 in un-reimbursed expenses. The employee began his employment with the
Company in April 2002 and was terminated in the same month. As of December 31,
2002 the Company had accrued $32,005 related to this litigation.
On October 25, 2002 the company was notified that a judgment was awarded in the
amount of $30,000 in this matter. The Company has filed an order denying motion
for attorney fees.
On December 11, 2002 the Company executed a partial settlement agreement whereby
computer equipment was transferred resulting in a $7,500 reduction in the amount
owing to this former employee.
NOTE 4 - STOCKHOLDERS' EQUITY
On May 23, 2003, the Company entered into a settlement agreement with Cityscape
to release and absolve all parties from any commitments generated from a prior
software license agreement. As consideration for this agreement, the Company
agreed to pay Cityscape $40,000.
On May 23, 2003, the Company entered into a strategic alliance agreement with On
Alert Systems, Inc. E-City and On Alert Systems also agreed to cooperate with
each other to enhance the mutual possibilities of sales relating to On Alert's
exclusive marketing and distribution agreement for the On Alert GDStm gunshot
detection system and E-City's computer mapping markets. As part of this
agreement, the Company agreed to sell On Alert Systems 35,000,000 shares
of common stock for the payment of the $40,000 liability discussed above to
Cityscape.
On May 23, 2003, in connection with the above mentioned agreements, the Company
entered into a consulting agreement with the former president of the Company. As
consideration for the agreement, the former president will return to the Company
2,149,000 of his personal shares of common stock in his custody or control and
the Company will issue him options to purchase 2,417,350 shares of common stock
at $0.01 per share. In the event the Company is unable to deliver, issue and
register the 2,417,500 options, the former president will be able to reclaim his
2,149,000 shares of common stock.