EXHIBIT 10.3
PLEDGE AND SECURITY AGREEMENT
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This PLEDGE AND SECURITY AGREEMENT (the "Agreement"), dated as of May 2,
2001, is by and between Xxxx Interactive Services, Inc., a corporation organized
and existing under the laws of Colorado (the "Pledgor") and France Telecom
Technologies, a corporation organized under the laws of France (the "Pledgee").
Recitals
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WHEREAS, the Pledgor and Xxxxxx.xxx, a Delaware corporation (the "Obligor")
and a subsidiary of the Pledgor have entered into a Note Purchase Agreement (the
"Purchase Agreement") of even date herewith with French Telecom Technologies, a
French corporation ("FTT"). In connection with the Purchase Agreement, the
Obligor has given a promissory note to FTT, date of even date herewith (the
"Note");
WHEREAS, as a condition to the consummation of the transactions
contemplated by the Purchase Agreement and the Note and to induce FTT to
consummate the transactions set forth in the Purchase Agreement and the Note,
the Pledgor has guaranteed the payment and performance by the Obligor of its
obligations under the Note pursuant to the Corporate Guaranty (the "Guaranty")
of even date herewith. As a further condition to the consummation of the
transactions contemplated by the Purchase Agreement and the Note, the Pledgor
has agreed to secure its obligations under the Guaranty by entering into this
Agreement.
Agreement
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NOW, THEREFORE, the Pledgor and the Pledgee hereby agree as follows:
1. Pledge and Grant of Security Interest.
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(a) For value received and to induce the Pledgee to enter into the
Purchase Agreement and extend a loan to the Obligor, the Pledgor hereby pledges
and assigns to the Pledgee and grants as security to the Pledgee for all present
and future obligations, indebtedness and liabilities of all kinds of Pledgor to
the Pledgee under the Note, the Purchase Agreement and the other Transaction
Documents (collectively referred to as the "Secured Obligations"), a first lien
on, and security interest in, all its right, title and interest in and to the
following:
i. (a) all of the issued and outstanding shares of the capital
stock of Xxxxxx.xxx, Inc., a Delaware corporation (the "Pledged
Subsidiary"), which are presently owned by the Pledgor (with all such
shares of capital stock identified in Schedule 1 hereto), and (b) all other
equity interests in the Pledged Subsidiary whether now existing or
hereafter acquired and all additional shares of capital stock of the
Pledged Subsidiary from time to time received or acquired by
the Pledgor by purchase, stock dividend, stock split, distribution or
otherwise (all such shares of stock of the Pledged Subsidiary pledged
hereunder being referred to collectively as the "Pledged Shares");
ii. all certificates representing any of the Pledged Shares,
whether currently existing or hereafter issued; and
iii. except as otherwise provided in Section 5 hereof, any and all
dividends, cash, securities, instruments, warrants, options and other
property, proceeds and distributions from time to time received,
receivable, paid or otherwise distributed in respect of, in substitution
for, in addition to or in exchange for or evidencing any of the Pledged
Shares and all proceeds thereof.
(b) The Pledged Shares, the certificates therefor, all dividends,
cash, securities, instruments, warrants, options and other property, proceeds
and distributions from time to time received, receivable, paid or otherwise
distributed in respect of, in substitution for, in addition to or in exchange
for or evidencing any of the Pledged Shares and all proceeds thereof together
with all other property, rights and interests described in this Section 1,
whether now existing or hereafter acquired or obtained, are referred to herein
collectively as the "Collateral."
2. Delivery of Pledged Share Certificates; Registry Notations.
(a) All certificates or instruments representing or evidencing the
Pledged Shares referred to in Section 1 hereof have previously been delivered or
are being delivered to the Pledgee concurrently with the execution of this
Agreement, and are in suitable form for transfer by delivery, endorsed in blank
or accompanied by duly executed undated instruments of transfer or assignments
in blank, having attached thereto or to such certificates all requisite federal,
state or provincial stock transfer tax stamps, all in form and substance
satisfactory to the Pledgee.
(b) All necessary and appropriate entries, notations and written
descriptions in the books or share registry of the Pledged Subsidiary evidencing
and necessary or desirable to perfect the pledge of the Collateral pursuant
hereto have been or will be made concurrently with the execution of this
Agreement, and the Pledgor shall pay all requisite federal, state, provincial or
other governmental fees or taxes therefor. The Pledgor shall forthwith take all
other actions necessary, appropriate or desirable pursuant to applicable law to
perfect the pledge of the Collateral.
3. Representations, Warranties, Covenants and Agreements of the Pledgor.
The Pledgor represents, warrants, covenants and agrees that:
(a) The Pledged Shares constitute all of the issued and outstanding
common stock or other equity interests of the Pledged Subsidiary owned by the
Pledgor.
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(b) The Pledged Shares have been duly authorized and are validly
issued, fully paid and non-assessable.
(c) Except for the security interests granted hereby, the Pledgor is,
and as to Collateral acquired after the date hereof the Pledgor shall and will
be at the time of acquisition, the record and beneficial owner and holder of the
Collateral free from any adverse claim, security interest, pledge, encumbrance,
lien, charge, or other right, title or interest of any person other than the
Pledgee, and covenants that at all times the Collateral will be and remain free
of all such adverse claims, security interests, pledges, encumbrances, liens,
charges or other adverse interests by third parties. The Pledged Shares are free
from and not otherwise subject to any voting agreements, voting trusts, proxies,
options, preferential purchase rights or other right of any party to acquire all
or any portion of the Pledged Shares.
(d) None of the Pledged Shares bears any legend restricting their
transfer.
(e) (i) The Pledgor has full power and lawful authority to enter
into this Agreement and to pledge the Collateral to the Pledgee and to grant to
the Pledgee a first and prior security interest therein as herein provided, all
of which have been duly authorized by all necessary corporate action.
(ii) The execution and delivery and the performance hereof are
not in contravention of any charter, articles of incorporation or by-law
provision, or of any Instrument or undertaking to which the Pledgor is a
party or by which the Pledgor or its property is bound.
(iii) This Agreement constitutes the valid and legally binding
obligation of the Pledgor enforceable in accordance with its terms.
(iv) The Pledgor will defend the Collateral against all claims
and demands of all persons at any time claiming the same or any interest
therein. Any officer or representative acting for or on behalf of the
Pledgor in connection with this Agreement or any aspect hereof, or entering
into or executing this Agreement on behalf of the Pledgor, has been duly
authorized to do so, and is fully empowered to act for and represent the
Pledgor in connection with this Agreement and all matters related thereto
or in connection therewith.
(f) (i) Pledgor's principal place of business and chief executive
office is in Denver, Colorado. Pledgor shall not change the location of its
principal place of business or chief executive office without twenty (20) days
prior written notice to the Pledgee.
(ii) The preamble hereof states the correct legal name of the
Pledgor and the Pledgor does not conduct business under any other name.
Pledgor shall not change its corporate name, nor do business under any name
other than its current name, unless the Pledgor has delivered to the
Pledgee
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written notice of such other names at least 30 days prior to the date of
first use thereof by the Pledgor.
(g) (i) The Pledgor has not heretofore agreed to or signed any
pledge, charge, financing statement or security agreement which covers any of
the Collateral, and no such pledge, charge, financing statement or security
agreement is now on file in any public office and the Pledgor has not heretofore
filed or inserted any entries or notations in the books or share registry of the
Pledgor or the Pledgor evidencing any pledge of the Collateral (other than such
financing statements, security agreements and share registry notations, if any,
of which both written notice and true and correct copies have heretofore been
given by the Pledgor to the Pledgee).
(ii) As long as any amount remains unpaid on any of the Secured
Obligations or under any agreement entered into in connection with the
Secured Obligations, except as expressly permitted by any such agreement,
(A) the Pledgor will not enter into or execute any pledge, charge, security
agreement or financing statement covering the Collateral, other than those
pledges, charges, security agreements and financing statements in favor of
the Pledgee hereunder, (B) the Pledgor shall not file or consent to the
filing of any pledge, financing statement or statements (or any documents
or papers filed as such) covering the Collateral, other than financing
statements in favor of the Pledgee hereunder, unless in any case the prior
written consent of the Pledgee shall have been obtained, and further (C)
the Pledgor shall not insert, file or make any notations in the books or
share registry of the Pledgor evidencing any pledge of the Collateral,
other than such entries and notations in favor of the Pledgee hereunder.
(iii) The Pledgor authorizes the Pledgee to file, in its
discretion, in jurisdictions where this authorization will be given effect,
a financing statement, personal property security act filing or other
instrument for filing required by any jurisdiction applicable to the
Collateral signed only by the Pledgee covering the Collateral, and hereby
appoints the Pledgee as the Pledgor's attorney-in-fact to sign and file any
such financing statements or other instruments covering the Collateral. At
the request of the Pledgee, the Pledgor will join the Pledgee in executing
such Instruments as the Pledgee may determine from time to time to be
necessary or desirable under provisions of any applicable Uniform
Commercial Code, Personal Property Security Act or other applicable laws in
effect where the Collateral is located or where the Pledgor conducts
business; without limiting the generality of the foregoing, the Pledgor
agrees to join the Pledgee, at the Pledgee's request, in executing one or
more financing statements or other Instruments in form satisfactory to the
Pledgee, and the Pledgor will pay the costs of filing or recording the same
in all public offices at any time and from time to time whenever filing or
recording of any such financing statement or other Instrument is deemed by
the Pledgee to be necessary or desirable.
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(h) In the event that the Pledgor receives any promissory notes or
evidences of indebtedness of the Pledgor, the Pledgor shall hold the same in
trust as property of the Pledgee and forthwith assign, pledge and deliver the
same to the Pledgee.
4. Rights of the Pledgee and the Pledgor Related to Collateral.
The Pledgee may from time to time following the occurrence of an Event of
Default, as defined in the Note or the Purchase Agreement:
(a) Transfer any of the Collateral into the name of the Pledgee or
its nominee.
(b) Notify parties obligated on any of the Collateral to make payment
to the Pledgee of any amounts due or to become due thereunder.
(c) Enforce collection of any of the Collateral by suit or otherwise;
surrender, release or exchange all or any part thereof, or compromise or extend
or renew for any period (whether or not longer than the original period) any
obligation of any nature of any party with respect thereto; and exercise all
other rights of the Pledgor in any of the Collateral, except as hereinafter
provided with respect to income from or interest on the Collateral and except
that, prior to an Event of Default, the Pledgor may exercise its voting and
consensual rights with respect to any Collateral constituting voting securities.
(d) Take possession or control of any proceeds of the Collateral.
Until the occurrence of an Event of Default, the Pledgor shall have the
right to receive all income from or interest on the Collateral, and if the
Pledgee receives any such income or interest prior to the occurrence of an Event
of Default, the Pledgee shall pay the same promptly to the Pledgor, except that
in the case of securities or other property distributed by way of a dividend or
otherwise with respect to the Collateral, such securities or other property
shall be promptly delivered to the Pledgee to be held as Pledged Shares or other
Collateral hereunder. Upon the occurrence of an Event of Default, the Pledgor
will not demand or receive any income from or interest on the Collateral, and if
the Pledgor receives any such income or interest without any demand by it, the
same shall be held by the Pledgor in trust for the Pledgee in the same medium in
which received, shall not be commingled with any assets of the Pledgor and shall
be delivered to the Pledgee in the form received, properly endorsed to permit
collection, not later than the next business day following the day of its
receipt. The Pledgee may apply the net cash received from such income or
interest to payment of any of the Secured Obligations, provided that the Pledgee
shall account for and pay over to the Pledgor any such income or interest
remaining after payment in full of the Secured Obligations then outstanding.
So long as no Event of Default shall have occurred, the Pledgor shall be
entitled to exercise any and all voting and other consensual rights pertaining
to the Collateral or any part thereof for any purpose not inconsistent with the
terms of this Agreement or the Purchase Agreement; provided, however, that the
Pledgor shall not exercise or refrain from exercising any such right if, in the
Pledgee's judgment, such action would have a material adverse effect on the
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value of the Collateral or any part thereof; and, provided, further, that the
Pledgor shall give the Pledgee at least five days' written notice of the manner
in which it intends to exercise, or the reasons for refraining from exercising,
any such rights.
The Pledgee shall never be under any obligation to collect, attempt to
collect, protect or enforce the Collateral or any security therefor, which the
Pledgor agrees and undertakes to do at the Pledgor's expense, but the Pledgee
may do so in its discretion at any time after the occurrence of an Event of
Default and at such time the Pledgee shall have the right to take any steps by
judicial process or otherwise as it may deem proper to effect the collection of
all or any portion of the Collateral or to protect or to enforce the Collateral
or any security therefor. All expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred or paid by the Pledgee in
connection with or incident to any such collection or attempt to collect the
Collateral or actions to protect or enforce the Collateral or any security
therefor shall be borne by the Pledgor or reimbursed by the Pledgor to the
Pledgee upon demand. The proceeds received by the Pledgee as a result of any
such actions in collecting or enforcing or protecting the Collateral shall be
utilized by the Pledgee in accordance with Section 10 hereof.
5. Further Assurances.
The Pledgor agrees to take such actions and to execute such stock or bond
powers or other Instruments and such other or different writings as the Pledgee
may reasonably request further to perfect, confirm and assure the Pledgee's
security interest in the Collateral and irrevocably authorizes the Pledgee, as
Pledgor's agent and attorney-in-fact, to assist the Pledgee's realization
thereon upon the occurrence of an Event of Default including, without
limitation, the right to receive, indorse, and collect all instruments made
payable to the Pledgor representing any dividend, interest payment or other
distribution in respect of the Pledged Shares or any part thereof.
6. Events of Default.
The occurrence of an Event of Default under the Note, the Purchase
Agreement or any other Transaction Document shall constitute an "Event of
Default" hereunder.
7. Rights and Remedies of the Pledgee Upon Default.
If an Event of Default shall have occurred:
(a) The Pledgee shall have and may exercise with reference to the
Collateral and the Secured Obligations any and all of the rights and remedies of
a secured party under the Uniform Commercial Code ("UCC"), and as otherwise
granted herein or under any other applicable law or under any other Transaction
Document now or hereafter in effect executed by the Pledgor, including, without
limitation, the right and power to sell, at public or private sale or sales, or
otherwise dispose of, or otherwise utilize the Collateral and any part or parts
thereof in any manner authorized or permitted under the UCC after default by a
debtor, and to apply the proceeds thereof toward payment of any costs and
expenses and attorneys' fees and expenses thereby incurred by the Pledgee and
toward payment of the Secured Obligations in
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such order or manner as permitted by law. Specifically and without limiting the
foregoing, the Pledgee shall have the right to take possession of all or any
part of the Collateral, any certificate therefor or any security therefor and of
all books, records, papers and documents of the Pledgor or in the Pledgor's
possession or control relating to the Collateral which are not already in the
Pledgee's possession, and for such purpose may enter upon any premises upon
which any of the Collateral or any security therefor or any of said books,
records, papers and documents are situated and remove the same therefrom without
any liability for trespass or damages thereby occasioned. To the extent
permitted by law, the Pledgor expressly waives any notice of sale or other
disposition of the Collateral and all other rights or remedies of the Pledgor or
formalities prescribed by law relative to sale or disposition of the Collateral
or exercise of any other right or remedy of the Pledgee existing after default
hereunder. The Pledgee shall have all other rights and remedies available,
whether at law or in equity.
(b) Upon notice by the Pledgee to the Pledgor, the Pledgee or its
nominee or nominees shall have the sole and exclusive right to exercise all
voting and consensual powers pertaining to the Collateral or any part thereof
and may exercise such powers in such manner as the Pledgee may elect.
(c) All dividends, payments of interest and other distributions of
every character made upon or in respect of the Pledged Shares or any part
thereof shall be deemed to be Collateral and shall be paid directly to and shall
be held by the Pledgee as additional Collateral pledged under and subject to
this Agreement.
(d) All rights to marshaling of assets of the Pledgor, including any
such right with respect to the Collateral, are hereby waived by the Pledgor.
8. Special Provisions for Pledged Shares.
The Pledgor hereby acknowledges that the sale by the Pledgee of any of the
Pledged Shares pursuant to the terms hereof in compliance with federal and
applicable state or securities laws or the securities laws of any other
applicable jurisdiction exercising valid jurisdiction over the Pledged Shares
(as now in effect or as hereafter amended, or any similar statute hereafter
adopted with similar purpose or effect, the "Securities Laws") may require
strict limitations as to the manner in which the Pledgee or any subsequent
transferee of the Pledged Shares may dispose of such securities. The Pledgor
understands that in order to protect the Pledgee's interest it may be necessary
to sell the Pledged Shares at a price less than the maximum price attainable if
a sale were delayed or were made in another manner, such as a public offering
requested under the Securities Laws. The Pledgor has no and waives any objection
to a sale in such a manner.
9. Application of Proceeds by the Pledgee.
In the event the Pledgee sells or otherwise disposes of the Collateral in
the course of exercising the remedies provided for in Sections 8 or 9 hereof,
any amounts held, realized or received by the Pledgee pursuant to the provisions
hereof, including the proceeds of the sale of any of the Collateral or any part
thereof, shall be applied by the Pledgee first toward the payment
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of any costs and expenses incurred by the Pledgee in enforcing this Agreement,
then to any amounts otherwise due hereunder or under the Guaranty, and then as
provided in the Purchase Agreement. Any amounts and any Collateral remaining
after such application and after payment to the Pledgee of all of the Secured
Obligations in full shall be paid or delivered as required by law, or as a court
of competent jurisdiction may direct.
The Pledgee shall be deemed to have exercised reasonable care in the
custody and preservation of the Collateral in its possession if the Collateral
is accorded treatment substantially equal to that which the Pledgee accords its
own property, it being understood that the Pledgee shall not have any
responsibility for (x) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not the Pledgee has or is deemed to have knowledge of
such matters or (y) taking any necessary steps to preserve rights against any
parties with respect to any Collateral.
10. Absolute Interest.
(a) All rights of the Pledgee hereunder, and all obligations of the
Pledgor hereunder, shall be absolute and unconditional irrespective of (i) any
lack of validity or enforceability of any provision of the Purchase Agreement,
the Note or any other Transaction Document, any agreement with respect to the
Secured Obligations or any other agreement or instrument relating to any of the
foregoing, (ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other amendment or
waiver of or any consent to any departure from the Purchase Agreement, the Note
or any other Transaction Document, (iii) any exchange, release or non-perfection
of any Collateral or any other security for or Collateral securing the Secured
Obligations, or any release or amendment or waiver of or any consent to or
departure from any guarantee or any other security, for all or any of the
Secured Obligations or (iv) any other circumstance which might constitute a
defense available to, or a discharge of, the Pledgor in respect of the Secured
Obligations or this Agreement.
(b) The Pledgee is hereby subrogated to all of the Pledgor's
interests, rights and remedies in respect to the Collateral and all security now
or hereafter existing with respect thereto and all guaranties and endorsements
thereof and with respect thereto.
11. Termination.
This Agreement and the security interests created hereunder shall terminate
when all the Secured Obligations have been indefeasibly paid in full, at which
time the Pledgee shall execute and deliver to the Pledgor all documents which
the Pledgor shall reasonably request to evidence termination of such security
interest and shall return physical possession of any Collateral then held by the
Pledgee to the Pledgor; provided, however, that all indemnities of the Pledgor
contained in this Agreement shall survive, and remain in full force and effect
regardless of the termination of the security interest of this Agreement.
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12. Additional Information.
The Pledgor agrees to furnish the Pledgee from time to time such additional
information and copies of such documents relating to this Agreement, the
Collateral, the Secured Obligations and the Pledgor's financial condition as the
Pledgee may reasonably request.
13. Notices.
Any communication, notice or demand to be given hereunder shall be in
writing and given in the manner and to the addresses set forth in the Purchase
Agreement.
14. Indemnity and Expenses.
The Pledgor agrees to indemnify the Pledgee, and the officers, directors,
employees and agents of the Pledgee (with the foregoing referred to collectively
as the "Indemnified Parties"), for, and to hold each Indemnified Party harmless
against, any loss, liability, claim judgment, settlement, compromise,
obligation, damage or penalty of any kind or nature, including the costs and
expenses of the Indemnified Party incurred in defending itself against any claim
of liability in connection with or arising out of this Agreement, unless arising
from the gross negligence or willful misconduct of such Indemnified Party.
15. No Waiver; Cumulative Rights.
No failure on the part of the Pledgee to exercise, and no delay in
exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by the Pledgee of any right,
remedy or power hereunder preclude any other or future exercise of any other
right, remedy or power. Each and every right, remedy and power hereby granted to
the Pledgee or allowed it by law or other agreement shall be cumulative and not
exclusive of any other and may be exercised by the Pledgee from time to time.
16. GOVERNING LAW; CONSENT TO JURISDICTION.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Colorado, excluding the body of law relating to conflict of
laws.
17. Execution in Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute one and
the same agreement. Each of the parties to this Agreement will be entitled to
rely upon delivery by facsimile machine of an executed copy of this Agreement
and acceptance of such facsimile copy will be legally effective to create a
valid and binding agreement between the parties in accordance with the terms
hereof.
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18. Severability.
If any one or more provisions of this Agreement should be declared invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected, impaired or prejudiced thereby.
IN WITNESS WHEREOF, the parties have caused this Pledge Agreement to be
duly executed as of the date first above written.
PLEDGOR:
XXXX INTERACTIVE SERVICES, INC.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Senior Vice President Corporate
Development
PLEDGEE:
FRANCE TELECOM TECHNOLOGIES
By: /s/ Xxxx Cozanet
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Name: Xxxx Coganet
Title: Director General
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SCHEDULE 1
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DESCRIPTION OF PLEDGED SHARES
ISSUER CLASS CERTIFICATE NUMBER OF PERCENTAGE OF
NUMBER SHARES SHARES
OUTSTANDING
OWNED BY
S-1
