Exhibit 99.4
AMENDMENT NO. 1 TO PLEDGE AGREEMENT
THIS AMENDMENT NO. 1, dated as of February 5, 2001 (this
"Amendment"), TO PLEDGE AGREEMENT, dated as of January 8, 2001 (the "Pledge
Agreement"), made by Xxxx.xxx, Inc., a Delaware corporation ("Xxxx.xxx"), and
Xxxxx.xxx, Inc., a Nevada corporation ("Xxxxx.xxx"; Xxxx.xxx and Xxxxx.xxx are
collectively referred to herein as the "Pledgor"), in favor of the holders from
time to time of Notes referred to below (the "Holders"), and The Xxxxx Estates,
Inc., a New York corporation, as collateral agent on behalf of the Holders (the
"Collateral Agent"). Capitalized terms used and not otherwise defined herein
shall have the respective meanings ascribed to them in the Note Purchase
Agreement (as defined below).
W I T N E S S E T H:
--------------------
WHEREAS, Xxxx.xxx, among others, has entered into a Note
Purchase Agreement, dated as of January 8, 2001, with the Purchasers named
therein (the "Note Purchase Agreement") pursuant to which the Purchasers
purchased or will purchase up to $15,000,000 Senior Convertible Notes due
January 5, 2006 (the "Convertible Notes") issued by Xxxx.xxx, Xxxx.xxx Business
Messaging Services, Inc. and The Allegro Group, Inc.; and
WHEREAS, concurrently with the execution and delivery of the
Note Purchase Agreement, the Pledgor entered into the Pledge Agreement with the
holders of the Convertible Notes and the Collateral Agent; and
WHEREAS, Xxxxx.xxx, Inc. has entered into a Bridge Funding and
Amendment Agreement, dated as of the date hereof, with the Investors named
therein (the "Bridge Funding Agreement") pursuant to which the Investors have
agreed to purchase up to $5,000,000 Senior Promissory Notes issued by Xxxx.xxx
(the "Bridge Notes" and, collectively with the Convertible Notes, the "Notes");
WHEREAS, the execution and delivery of this Amendment is a
condition precedent under the Bridge Funding Agreement to the Investors'
obligations to purchase the Bridge Notes;
NOW, THEREFORE, in consideration of the premises and in order
to induce the Investors to purchase the Bridge Notes, the parties to the Pledge
Agreement hereby agree with the Investors as follows:
SECTION 1. Amendments to Pledge Agreement. As of the date
hereof, the Pledge Agreement is hereby amended as follows:
(i) The first whereas clause is deleted and the following
whereas clauses are substituted therefore:
"WHEREAS, Xxxx.xxx, among others, has entered into a
Note Purchase Agreement, dated as of January 8, 2001, with the
Purchasers of Notes named therein (the "Note Purchase Agreement")
pursuant to which the Purchasers purchased or will purchase up to
$15,000,000 Senior Convertible Notes due January 5, 2006 (the
"Convertible Notes") issued by Xxxx.xxx, Xxxx.xxx Business Messaging
Services, Inc. and The Allegro Group, Inc.;
WHEREAS, Xxxxx.xxx, Inc., a New Jersey corporation
("Xxxxx.xxx"), has entered into a Bridge Funding and Amendment
Agreement, dated as of the date hereof, with the Investors named
therein (the "Bridge Funding Agreement") pursuant to which the
Investors have agreed to purchase up to $5,000,000 Senior Promissory
Notes issued by Xxxx.xxx (the "Bridge Notes" and, together with the
Convertible Notes, the "Notes"); and"
(ii) The phrase "and the Bridge Notes" shall be inserted
immediately following all references to the Note Purchase Agreement);
(iii) The term "Event of Default" shall mean an Event of
Default under any of the Notes;
(iv) The phrase "in excess of the outstanding Secured
Obligations in respect of the Bridge Notes and" shall be inserted immediately
following the term "proceeds" in the penultimate sentence of Section 7;
(v) The parenthetical "(which shall include Xxxxx.xxx)" shall
be inserted immediately following the phrase "Majority Holders" in Section 14;
(vii) The following notice information shall be added to
Section 15: "Xxxxx.xxx, Inc., c/o Xxxx.xxx, Inc., 00 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx, Attn: Xxxxxxxx Xxxxx, Chief Executive Officer"; and
(viii) All references to the "Transaction Documents" shall be
deemed to include the Bridge Notes.
SECTION 2. Governing Law; Severability Terms. This Amendment
shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the law of the State of New York excluding
choice-of-law principles of the law of such State that would require the
application of the laws of a jurisdiction other than such State. Wherever
possible, each provision of this Amendment shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Amendment shall be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity and
without invalidating the remaining provisions of this Amendment.
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SECTION 3. Counterparts.
This Amendment may be executed in counterparts, each of which
together shall constitute one and the same instrument. IN WITNESS WHEREOF, the
parties have caused this Amendment to be duly executed and delivered by its duly
authorized officer on the date first above written.
XXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxx
Chief Executive Officer
XXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------
Xxxx Xxxxxx
Chief Executive Officer
THE XXXXX ESTATES, INC., as Collateral Agent
on behalf of the Holders
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: President
NATIONAL FEDERATION OF INDEPENDENT BUSINESS
EMPLOYEE PENSION TRUST
PUBLIC EMPLOYEE RETIREMENT SYSTEM OF IDAHO
CITY OF MILFORD PENSION & RETIREMENT FUND
CITY OF STAMFORD FIREMEN'S PENSION FUND
THE XXXXXXX XXXXXX FOUNDATION
ASPHALT GREEN, INC.
XXXX XXXXXX FOUNDATION
XXXXX FOUNDATION
ROANOKE COLLEGE
A. XXXXX XXXXXXX
XXXXX XXXXXXX XXXXXX
XXXXXX FAMILY LLC
XXXXX XXXXXXX
HBL CHARITABLE UNITRUST
XXXXXX XXXXXXXX
XXXXX XXXX
XXXXXX X. XXXXXXX
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PSYCHOLOGY ASSOCIATES
XXXXX XXXXXX
XXXX X. XXXXXXXX
XXXXXX CAPITAL, LLC
THE XXXXXX INVESTMENT PARTNERSHIP I, L.P.
XXXXXXX X. XXXXX
XXXXXX TRUST CO.OF THE BAHAMAS LTD. AS
TRUSTEE U/A/D 11/30/93
XXXXXX X. XXXXXX
XXXXX XXXX XXXXXXX
THEEUWES FAMILY TRUST, XXXXX XXXXXXXX TRUSTEE
XXXXXXX X. XXXXX
XXXXX FAMILY LLC
XXXXXX X. XXXXXXX
XXXXXX XXXXXX XXXXXXX
XXXXXX AND XXX-XXXXX XXXXXX
XXXX X. & XXXXXXXXX X. XXXXXX
XXXXXXX INVESTMENT PARTNERS LP
By: XXXXXXX CAPITAL GROUP, LLC, as attorney in fact
By /s/ Xxxxxx Xxxxxxx
-----------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
FEDERAL PARTNERS, L.P.
By: Ninth Floor Corporation, its general partner
By: /s/ Xxxxx X. Xxxxx
-----------------------
Xxxxx X. Xxxxx
President
XXXXX.XXX, INC.
By: /s/ Xxxxxxxx Xxxxx
---------------------------------
Xxxxxxxx Xxxxx
Chief Executive Officer
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