EXHIBIT 10.26
FORM
OF
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of January 14, 2002, made by Fountainhead Media
Services, Inc., a California corporation (the "Pledgor"), in favor of Hollywood
Media Corp., a Florida corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Pledgor is obligated to Company in the amount of $2,000,000 (the
"Loan") pursuant to the Stock Purchase Agreement, dated as of January 14, 2002
(the "Stock Purchase Agreement"), executed in connection with the Transfer and
Shareholders Agreement dated as of January 14, 2002 (the "Transfer Agreement")
by and between the Company and Pledgor;
WHEREAS, the Loan is evidenced by a promissory note of even date herewith
in favor of the Company (the "Note");
WHEREAS, Pledgor is the legal and beneficial owner of the shares of Pledged
Stock (as hereinafter defined); and
WHEREAS, it is a condition precedent to the obligation of the Company to
consummate the transactions contemplated by the Transfer Agreement that Pledgor
shall have executed and delivered this Pledge Agreement to the Company.
NOW, THEREFORE, in consideration of the premises and to induce the Company
to make the Loan, Pledgor hereby agrees with the Company, as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined in the
Note and used herein shall have the meanings assigned to them in the Note.
(b) The following terms shall have the following meanings:
"Agreement": this Pledge Agreement, as the same may be amended, modified or
otherwise supplemented from time to time.
"Business Day": any day other than a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or required by law to
close.
"Code": the Uniform Commercial Code from time to time in effect in the
State of New York.
"Collateral": the Pledged Stock and all Proceeds.
"Default": any event that is or with the passage of time or the giving of
notice or both would be an Event of Default under the Note.
"Obligations": the collective reference to the unpaid principal of and
interest on the Note and all other obligations and liabilities of Pledgor to the
Company (including, without limitation, interest accruing at the then applicable
rate provided in the Note after the maturity of the Loan and interest accruing
at the then applicable rate provided in the Note after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to Pledgor, whether or not a claim for post-filing or
postpetition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with the
Note and this Agreement or any other document made, delivered or given in
connection therewith, in each case whether on account of principal, interest,
costs, expenses or otherwise.
"Person": any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
"Pledged Stock": the shares of capital stock listed on Schedule 1 hereto,
together with all stock certificates that may be issued or granted by the
Company to Pledgor as a dividend, distribution, option or right paid or issued
on the Pledged Stock, without payment of any consideration by Pledgor, while
this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section 9-306(l) of
the Code on the date hereof and, in any event, shall include, without
limitation, all dividends or other income from the Pledged Stock, collections
thereon or distributions with respect thereto.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section and paragraph
references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. Pledgor hereby delivers to the
Company all the Pledged Stock and hereby grants to the Company a first security
interest in the Collateral, as collateral security for the prompt and complete
payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.
3. Stock Powers. Concurrently with the delivery to the Company of each
certificate representing one or more shares of Pledged Stock to the Company,
Pledgor shall deliver an undated stock power, in the form of Exhibit A hereto,
covering such certificate, duly executed in blank by Pledgor with, if the
Company so requests, signature guaranteed.
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4. Covenants. Pledgor covenants and agrees with the Company that, from and
after the date of this Agreement until this Agreement is terminated and the
security interests created hereby are released:
(a) If Pledgor shall, solely as a result of its ownership of the Pledged
Stock and without payment of any consideration other than delivery or exchange
of certificates representing the Pledged Stock, become entitled to receive or
shall receive any stock certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate issued
in connection with any reorganization), option or rights, whether in addition
to, in substitution of, as a conversion of, or in exchange for any shares of the
Pledged Stock, or otherwise in respect thereof, Pledgor shall accept the same as
the agent of the Company, hold the same in trust for the Company, and deliver
the same forthwith to the Company in the exact form received, duly endorsed by
Pledgor to the Company, if required, together with an undated stock power, in
the form of Exhibit A hereto, covering such certificate duly executed in blank
by Pledgor and with, if the Company so requests, signature guaranteed, to be
held by the Company, subject to the terms hereof, as additional collateral
security for the Obligations. Any such stock certificate shall constitute
Pledged Stock under this Agreement.
(b) Pledgor is subject to the restrictions on the transfer of the Pledged
Stock set forth in Section 5.8 of the Transfer Agreement. In addition, without
the prior written consent of the Company, Pledgor will not (1) sell, assign,
transfer, exchange or otherwise dispose of, or grant any option with respect to,
the Collateral, (2) create, incur or permit to exist any lien or option in favor
of, or any claim of any Person with respect to, any of the Collateral, or any
interest therein, except for the security interests created by this Agreement or
(3) enter into any agreement or undertaking restricting the right or ability of
Pledgor or the Company to sell, assign or transfer any of the Collateral.
(c) Pledgor shall maintain the security interest created by this Agreement
as a first, perfected security interest and shall defend such security interest
against claims and demands of all Persons whomsoever. At any time and from time
to time, upon the written request of the Company, and at the sole expense of
Pledgor, Pledgor will promptly and duly execute and deliver such further
instruments and documents and take such further actions as the Company may
reasonably request for the purposes of obtaining or preserving the full benefits
of this Agreement and of the rights and powers herein granted. If any amount
payable under or in connection with any of the Collateral shall be or become
evidenced by any promissory note, other instrument or chattel paper, such note,
instrument or chattel paper shall be immediately delivered to the Company, duly
endorsed in a manner satisfactory to the Company, to be held as Collateral
pursuant to this Agreement.
(d) Pledgor shall pay, and save the Company harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and all
stamp, excise, sales or other taxes which may be payable or determined to be
payable with respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.
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5. Cash Dividends; Voting Rights. Unless an Event of Default shall have
occurred and be continuing and the Company shall have given notice to Pledgor of
the Company's intent to exercise its corresponding rights pursuant to Section 7
below, Pledgor shall be permitted to receive all cash dividends paid in respect
of the Pledged Stock and to exercise all voting and corporate rights with
respect to the Pledged Stock.
6. Rights of the Company. If an Event of Default shall occur and be
continuing and the Company shall give notice to Pledgor of the Company's intent
to exercise its corresponding rights pursuant to Section 7 below, the Company
shall have the right to receive any and all cash dividends paid in respect of
the Pledged Stock and make application thereof to the Obligations in such order
as the Company may determine.
7. Remedies. If an Event of Default shall have occurred and be continuing
and Pledgor does not cure the Event of Default within 5 business days after
notice thereof, the Company may exercise, in addition to all other rights and
remedies granted in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the obligations, all rights and remedies of
a secured party under the Code. Without limiting the generality of the
foregoing, the Company, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon Pledgor or any other Person (all
and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
assign, give option or options to purchase or otherwise dispose of and deliver
the Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels at public or private sale or sales, in the over-the-counter
market, at any exchange, broker's board or office of Company or elsewhere upon
such terms and conditions as it may deem advisable and at such prices as it may
deem best, for cash or on credit or for future delivery without assumption of
any credit risk. The Company shall have the right upon any such public sale or
sales, and, to the extent permitted by law, upon any such private sale or sales,
to purchase the whole or any part of the Collateral so sold, free of any right
or equity of redemption in Pledgor, which right or equity is hereby waived or
released. The Company shall apply any Proceeds from time to time held by it and
the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every
kind incurred in respect thereof or incidental to the care or safekeeping of any
of the Collateral or in any way relating to the Collateral or the rights of the
Company hereunder, including, without limitation, reasonable attorneys' fees and
disbursements of counsel to the Company, to the payment in whole or in part of
the Obligations, in such order as the Company may elect, and only after such
application and after the payment by the Company of any other amount required by
any provision of law, including, without limitation, Section 9-504(l)(c) of the
Code, need the Company account for the surplus, if any, to Pledgor. To the
extent permitted by applicable law, Pledgor waives all claims, damages and
demands it may acquire against the Company arising out of the exercise by the
Company of any rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 10 days before such sale or other
disposition.
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8. Execution of Financing Statements. Pursuant to Section 9-402 of the
Code, Pledgor authorizes the Company to file financing statements with respect
to the Collateral without the signature of Pledgor in such form and in such
filing offices as the Company reasonably determines appropriate to perfect the
security interests of the Company under this Agreement. A carbon, photographic
or other reproduction of this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction.
9. Notices. All notices, requests and demands to or upon the Company or
Pledgor to be effective shall be in writing (or by telex, facsimile or similar
electronic transfer confirmed in writing) and shall be deemed to have been duly
given or made (1) when delivered by hand or (2) if given by mail, when deposited
in the mails by certified mail, return receipt requested, or (3) if by telex,
facsimile or similar electronic transfer, when sent and receipt has been
confirmed, addressed to the Company or Pledgor at its address or transmission
number for notices provided on the signature page hereto. The Company and
Pledgor may change their addresses and transmission numbers for notices by
notice in the manner provided in this Section 9.
10. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of the
terms or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by Pledgor and the
Company, provided that any provision of this Agreement may be waived by the
Company in a letter or agreement executed by the Company or by telex or
facsimile transmission from the Company.
(b) The Company shall not by any act (except by a written instrument
pursuant to paragraph 11(a) hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default or in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of the
Company, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Company of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Company would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
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12. Section Headings. The section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
13. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of Pledgor and shall inure to the benefit of the Company
and their successors and assigns.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed and delivered as of the date first above written.
FOUNTAINHEAD MEDIA SERVICES, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Address for Notices:
---------------------------------
---------------------------------
Fax: (____) ____-______
Accepted this 14th day of January, 2002
HOLLYWOOD MEDIA CORP..
By:
----------------------------------------------
Xxxxxxxx Xxxxxxxxxx
Chairman of the Board and Chief Executive Officer
Address for Notices:
Hollywood Media Corp.
0000 Xxxxxx Xxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000-0000
Fax: (000) 000-0000
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SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
1. Stock Certificate Nos. 02 and 03 representing 600 shares of Common
Stock, par value $.01 per share, of Baseline Acquisitions Corp., a Delaware
corporation.
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EXHIBIT A
STOCK POWER
For value received, Fountainhead Media Services, Inc. hereby sells, assigns
and transfers unto __________________________, ________ shares of Common Stock
of Baseline Acquisitions Corp. standing in the name on the books of said
Baseline Acquisitions Corp. represented by Certificate No. 02 and Certificate
No. 03 herewith and does hereby irrevocably constitute and appoint
________________ as attorney to transfer said shares on the books of Baseline
Acquisitions Corp. with full power of substitution in the premises.
Dated:_____________________ FOUNTAINHEAD MEDIA SERVICES, INC.
By: _____________________________
Name: ___________________________
Title: ____________________________
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