Exhibit 4.9
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT, dated as of November 3, 2003 (this
"Pledge Agreement"), by and between Access Integrated Technologies, Inc., a
Delaware corporation ("Pledgor"), and Xxxxx Xxxxx and Xxxxxx Xxxxxxxxx (each, a
"Secured Party" and, collectively, the "Secured Parties").
WHEREAS, pursuant to that certain Stock Purchase Agreement, dated July
17, 2003, by and between Pledgor, Hollywood Software, Inc. (the "Company") and
the Secured Parties (the "Purchase Agreement"), Pledgor has purchased from the
Secured Parties, and the Secured Parties have sold to Pledgor, 10,000,000 shares
of the Company's common stock, no par value, which represents all of the issued
and outstanding shares of capital stock of the Company (the "Company Stock");
WHEREAS, in partial consideration thereof, Pledgor has issued to the
Secured Parties secured promissory notes on the date hereof in the aggregate
principal amount of $7,250,000 (each, an "Initial Note" and, collectively, the
"Initial Notes");
WHEREAS, pursuant to Section 1.4 of the Purchase Agreement, Pledgor may
be required to issue additional notes to Secured Parties (the "Additional Notes"
and together with the Initial Notes, the "Notes"); and
WHEREAS, as a condition to the purchase and sale of the Notes, the
Secured Parties have required, and Pledgor has agreed to, the pledge and
granting of a security interest in all of the issued and outstanding capital
stock of the Company (the "Pledged Securities") as security for the timely
payment and performance of all obligations of the Pledgor under the Notes
(collectively, the "Obligations"), including without limitation, the obligations
of Pledgor to effect rescission of the Purchase Agreement and any deliveries
made with respect thereto, in accordance with Amendment No. 1 to the Purchase
Agreement ("Amendment No. 1"), dated as of even date herewith, by and among
Pledgor, the Company, the Secured Parties and Xxxxxx Xxxxxx & Co., L.L.C., a New
York limited liability company (the "Rescission Obligations").
NOW, THEREFORE, in consideration of and in reliance upon the
representations, warranties, covenants and agreements contained herein, the
parties hereby agree as follows:
1. Grant of Security Interest.
1.1 Grant. As security for the prompt, unconditional and
complete payment and performance, when due, whether at stated maturity, by
acceleration or otherwise, of each and every one of the Obligations, Pledgor
hereby pledges, hypothecates, assigns, charges, mortgages, delivers and
transfers to, and grants to the Secured Parties, in accordance with Section 1.2
hereof, a security interest in and a lien upon the Collateral (as defined
below), whether now existing or hereafter created or arising, now owned or
hereafter acquired, fixed or contingent, and wherever located. For purposes of
this Agreement, the term "Collateral" shall mean and include (i) the Pledged
Securities together with all cash dividends and other distributions, stock
dividends, interest, profits, redemption rights, warrants, subscription rights,
stock, securities, options, substitutions, exchanges and other distributions now
or hereafter paid, issued, delivered or distributed by the Company or which may
hereinafter be acquired by or delivered to the possession of Pledgor or the
Secured Parties with respect to the Collateral or otherwise but exclusive of any
Permitted Distributions (as defined in Section 3.2(a)(vi) hereof), (ii) the
Company's and Pledgor's records with respect to the foregoing, and (iii) all
proceeds of all the foregoing, regardless of form.
1.2 Delivery of Collateral. In connection with the grant of a
security interest in the Collateral by Pledgor in Section 1.1 hereof, the
certificates (or other agreements or instruments) representing the Company Stock
shall be delivered by Pledgor to the Secured Parties, duly endorsed in blank for
transfer or accompanied by an appropriate assignment or assignments or an
appropriate undated stock power or powers or any other documents, in every case
sufficient to transfer title thereto under applicable law. The Secured Parties
may, at any time after the occurrence and during the continuation of a Default
(as defined in Section 8 hereof), cause to be transferred into the name of the
Secured Parties any and all of the Company Stock. The Secured Parties shall at
all times have the right to exchange the certificates (or other agreements or
instruments) representing the Company Stock for certificates (or other
agreements or certificates) of smaller or larger denominations.
2. Representations and Warranties. Pledgor hereby represents and
warrants that:
2.1 Title; Other Liens. Pledgor is the legal and beneficial
owner of the Collateral free and clear of any lien, security interest, option,
pledge, or other charge or encumbrance created by it or any of its affiliates
(and no right or option created by Pledgor or any of its affiliates to acquire
the same exists in favor of any other person or entity), except for the security
interest created by this Pledge Agreement.
2.2 Organization. Pledgor is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware.
2.3 Approval, Corporate Authorization and Validity. Pledgor
has the power and authority to enter into and perform this Pledge Agreement and
to incur the obligations herein provided for, and has taken all actions
necessary to authorize the execution, delivery and performance of this Pledge
Agreement. This Pledge Agreement is the legal, valid and binding obligation of
Pledgor, enforceable against Pledgor in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency and other similar
laws affecting creditors' rights generally and to principles of equity affecting
the enforcement of contractual obligations generally. The making and performance
of this Pledge Agreement will not (immediately or with the passage of time, the
giving of notice, or both) (i) violate the certificate of incorporation or
by-laws of Pledgor or violate any laws or result in a default under any
contract, agreement, or instrument to which Pledgor is a party or by which
Pledgor or its property is bound, or (ii) result in the creation or imposition
of any security interest in, or lien, pledge, mortgage security interest or any
other encumbrance upon, any of the assets of the Pledgor, except in favor of the
Secured Parties. This Pledge Agreement, together with the documents delivered
pursuant hereto, is effective to create a valid and continuing first priority
security interest in the Collateral, securing the payment of the Obligations.
2
3. Covenants.
3.1 Maintenance of Security Interests; Further Documentation.
Pledgor hereby covenants and agrees that while any of the Obligations are
outstanding it shall:
(a) maintain the security interests created by this Pledge
Agreement and shall defend such security interests against claims and demands of
all persons whomsoever and shall not encumber or grant any security interest or
with respect to the Collateral or permit any of the foregoing;
(b) at any time, upon the written request of a Secured Party
and at the sole expense of Pledgor, promptly and duly execute and deliver such
further instruments and documents and take such further action as a Secured
Party may reasonably request for the purpose of obtaining or preserving the full
benefits of this Pledge Agreement and of the rights and powers herein granted;
(c) except as expressly permitted by the Purchase Agreement,
pay promptly when due all taxes, liens, assessments and other charges against
the Collateral, except to the extent the validity thereof is being contested in
good faith;
(d) not issue any additional shares of the Company's capital
stock or any right to acquire any such stock or any securities convertible into
shares of the Company's capital stock;
(e) maintain the Company as a separate entity from Pledgor and
operate the Company's business as an independent business unit (including
maintenance of separate bank accounts, accounting and business records, licenses
and permits) and use commercially reasonable efforts to maintain, protect and
defend the assets of the Company from and against any loss, damage or diminution
in value; provided, that no action taken by Pledgor and permitted under Section
3.2 hereof shall be deemed a violation of this clause (e); and
(f) maintain and cause the Company to maintain the
confidentiality of all trade secrets and other confidential or proprietary
information or technology of the Company.
3.2 Future Indebtedness; Preservation of Collateral.
(a) Pledgor agrees that it shall not, while any Obligations
are outstanding, (i) incur, create or assume any indebtedness other than
Permitted Indebtedness (as defined in the Initial Notes), (ii) incur, create or
assume any indebtedness that is senior in priority to the indebtedness evidenced
by the Notes other than the Senior Indebtedness (as defined in the Initial
Notes), (iii) permit, authorize, approve or cause the Company to incur, create
or assume any indebtedness other than (A) any line of credit existing prior to
the consummation of the transactions contemplated by the Purchase Agreement and
any refinancing thereof, in amounts not to exceed the current maximum
availability thereunder, (B) as contemplated by clause (v) below or (C)
unsecured liabilities to trade creditors and other third parties incurred in the
ordinary course of the Company's business, (iv) pledge or grant a security
interest in or permit, authorize, approve or cause the Company to pledge or
grant a security interest in all or any portion of the Company's assets, other
than any pledge or grant that exists prior to the consummation of the
transactions contemplated by the Purchase Agreement or that results from any
refinancing thereof, (v) loan or make any advance of funds to the Company other
than loans or advances reasonably necessary to fund the operations of the
Company, (vi) permit, authorize, approve or cause the Company to make or commit
to any dividend, distribution or other payment to Pledgor or any direct or
indirect subsidiary of Pledgor (other than pursuant to contracts or agreements
permitted by clause (vii) below); provided, however, that so long as a Default
shall not have occurred and be continuing, the Company may periodically make
cash distributions to Pledgor (as sole shareholder of the Company) in an
aggregate amount not to exceed the Company's cash flow from operations
(calculated in accordance with generally accepted accounting principles,
consistently applied) for the period from the date of this Agreement through the
end of the fiscal quarter immediately preceding the date of such distribution
("Permitted Distributions"), (vii) permit, authorize, approve or cause the
Company to enter into any contract or agreement with Pledgor or any of its
direct or indirect subsidiaries or other affiliates other than contracts entered
into in the ordinary course of the Company's business, having terms no less
favorable than those generally available to third-parties in a negotiated
transaction, and providing for a termination right in favor of the Company in
the event that Pledgor no longer owns 100% of the outstanding capital stock of
the Company, (viii) permit, authorize, approve or cause the Company to enter
into any sale, transfer or hypothecation of any material portion of the
Company's assets other than transactions entered into in the ordinary course of
the Company's business, (ix) take any actions intended to or which could
reasonably be expected to prevent the Company from performing any material
obligation, or (x) permit, authorize, approve or cause the Company to enter into
any exclusive license agreement or similar arrangement with respect to all or
any portion of the Company's intellectual property assets.
3
(b) Without the prior written consent of the Secured Parties,
which shall not be unreasonably withheld, Pledgor shall not make an assignment,
grant a security interest or attempt any transfer of the Collateral or any
interest therein, and shall keep all of the Collateral free from all levies,
attachments, liens, charges and any other encumbrances created by it. Pledgor
promptly shall give written notice to the Secured Parties of any levy,
attachment, lien, charge or any other encumbrance against or upon Collateral
that shall not be discharged, released or satisfied within ten (10) days.
4. Collection of Dividends and Distributions. During the term of this
Pledge Agreement, and so long as there shall not occur or exist any Default,
Pledgor shall have the right to receive and retain any and all dividends or
other distributions payable by the Company on account of any of the Company
Stock, other than stock dividends or distributions of capital stock of the
Company in connection with any reclassification, increase or reduction of
capital, or issued in connection any reorganization of the Company, which shall
be delivered by the Pledgor to the Secured Parties in the form received duly
endorsed in blank for transfer or accompanied by an appropriate assignment or
assignments or an appropriate undated stock power or powers or any other
documents, in every case sufficient to transfer title thereto under applicable
law, to be held by the Secured Parties as additional security for the
Obligations. Upon the occurrence and during the continuation of any Default, all
dividends or other distributions payable by the Company on account of any of the
Company Stock shall be paid to the Secured Parties and any such sum receive by
Pledgor shall be deemed to be held by Pledgor in trust for the benefit of the
Secured Parties and shall be forthwith turned over to the Secured Parties for
application by the Secured Parties to the Obligations in such order as the
Secured Parties may elect.
4
5. Voting Rights. Unless a Default shall have occurred and be
continuing, the Pledgor shall be entitled to vote the Company Stock and to give
consents, waivers and ratifications in respect of the Company Stock; provided,
however, that the Secured Party shall receive copies of all notices of meetings
of the Board of Directors or shareholders of the Company and any minutes,
written consents or other such documentation of any corporate actions taken by
the Company. Upon the occurrence and continuation of a Default, the Secured
Party shall have the right, exercisable by delivery of written notice thereof to
the Company and the Escrow Agent, to vote the Company Stock or to instruct the
Escrow Agent to vote the Company Stock in accordance with the written
instructions of the Secured Party and Pledgor agrees to cause the Company to
honor and respect the exercise of such voting rights by the Secured Party.
Absent written notice of an election to exercise voting rights while a Default
is continuing, the voting rights shall remain in Pledgor.
6. Disposition of Collateral. The Secured Parties shall hold the
Collateral until the earlier to occur of the following:
(a) the Secured Parties and the Pledgor jointly agree as to
the delivery of the Collateral to either the Secured Parties or the Pledgor, in
which event the Collateral shall be delivered to such mutually agreed
party(ies);
(b) the Secured Parties deliver a certificate to Pledgor
certifying that a Default has occurred, in which event the Secured Parties may
exercise their rights with respect to such Collateral on the fifth (5th) day
after delivering such certificate; or
(c) the Pledgor delivers a certificate to the Secured Parties
certifying that the Pledgor has made all the payments required under the Notes
and all other Obligations have otherwise been satisfied in full, together with
either copies of the Notes marked "Paid in Full", in which case the Secured
Parties shall deliver the Collateral to the Pledgor on the fifth (5th) day after
receiving such certificate.
7. [Omitted].
8. Default. A "Default" shall exist hereunder if (i) a Rescission Event
(as the defined in Amendment No. 1) has occurred, or (ii) there shall be a
material breach of any provision of this Pledge Agreement, which, to the extent
curable, shall not be cured within thirty (30) days from Pledgor's receipt of
written notice of such breach.
9. Rights Following Default.
(a) Upon and following a Default, the Secured Parties shall
have all rights and remedies with respect to the Collateral afforded by the
Uniform Commercial Code, as from time to time in effect in the State of New York
(the "Code"), to a secured creditor having a security interest in property to
which Article 9 thereof applies. Without limiting the generality of the
foregoing, the Secured Parties, 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 or
entity (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, upon such
terms and conditions as it may deem advisable and at such prices as they may
deem best, for cash or on credit or for future delivery without assumption of
any credit risk. Pledgor acknowledges that private sales may be made at prices
and other terms less favorable to the seller than if such Collateral were sold
at public sale, and that the Secured Party has no obligation to delay the sale
of any such Collateral for the period of time necessary to permit the Company or
Pledgor to register the Collateral for public sale under applicable securities
laws. Pledgor agrees that any private sales made under the foregoing
circumstances shall not be deemed to have been in a commercially unreasonable
manner for the sole reason that it is a private sale. The Secured Parties 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. The Secured Parties shall apply any proceeds from
time to time held by either of them 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 Secured Parties, including,
without limitation, reasonable attorneys' fees and disbursements of counsel to
the Secured Parties, to the payment in whole or in part of the Obligations, in
such order as the Secured Parties may elect. Only after such application and
after the payment by Secured Parties of any other amount required by any
provision of law, need the Secured Parties account for the surplus, if any, to
Pledgor. 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 ten (10) days before such sale or other disposition. Pledgor
shall remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay the Obligations and the
fees and disbursements of any attorneys employed by the Secured Parties to
collect such deficiency.
5
(b) Following a Default, Pledgor will, upon receipt of any
proceeds, dividends, stock certificate or other sums arising from any sale or
other disposition of the Collateral or any instrument evidencing an obligation
to pay such sums, hold same in trust for the Secured Parties in the form
received, and will forthwith, without notice or demand, endorse, transfer and
deliver same to the Secured Parties.
(c) Without in any way limiting any other provisions in this
Agreement and in addition thereto, upon and following a Default, the Secured
Parties shall be entitled to obtain an order of specific enforcement of the
Rescission Obligation from a court of competent jurisdiction, and to the extent
permitted by applicable law, to do so without notice or bond.
10. Remedies Cumulative and Not Waivable. The rights and remedies of
the Secured Parties herein expressly specified are cumulative and not exclusive
of other contractual, common law or statutory rights and remedies that the
Secured Parties may have. The Secured Parties shall be under no duty to exercise
or withhold the exercise of any of their rights and remedies provided hereunder
or otherwise. No omission or delay by the Secured Parties in exercising any such
right or remedy fully shall operate as a waiver, or a partial waiver, of any
such right or remedy; nor shall any single or partial exercise of any such right
or remedy preclude other or further exercise thereof or the exercise of any
other right or remedy.
6
11. Expenses of Secured Party and Indemnification. Pledgor shall pay or
reimburse to a Secured Party, upon demand, any and all costs of a Secured Party
(including all reasonable attorneys' fees and disbursements) incident to the
establishment, defense, exercise or enforcement of its rights under this Pledge
Agreement or the defense of any action arising in connection with this Pledge
Agreement, including, without limitation, all costs incurred by a Secured Party
under, or in exercising rights under, this Pledge Agreement. Except as otherwise
provided herein expressly, Pledgor hereby agrees to indemnify and hold harmless
the Secured Parties, absent gross negligence or willful misconduct on the part
of any Secured Party, from and against all claims, losses, judgments and
liabilities arising in connection with the Collateral, this Pledge Agreement or
exercise of any right or remedy of the Secured Parties.
12. Termination. Notwithstanding anything to the contrary contained
herein, this Pledge Agreement shall terminate, at such time as Pledgor shall
have irrevocably paid to the Secured Parties (in immediately available funds)
all amounts due with respect to the Obligations.
13. Notices. Any notice, demand, request or process in connection
herewith shall be effective if sent according to the procedures set forth in the
Purchase Agreement.
14. Waiver of Presentment, etc. Pledgor hereby waives presentment,
notice of dishonor and protest of any instruments included in or evidencing
Obligations and all other notices and demands not expressly required by this
Pledge Agreement.
15. Governing Law; Terms. THIS PLEDGE AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
EXCEPT TO THE EXTENT THAT THE CODE PROVIDES THAT THE PERFECTION OF THE SECURITY
INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK.
16. Consent to Jurisdiction and Service of Process. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST PLEDGOR ARISING OUT OF OR RELATING TO THIS PLEDGE
AGREEMENT, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY
EXECUTING AND DELIVERING THIS PLEDGE AGREEMENT, PLEDGOR, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY:
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
7
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO PLEDGOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION
13 HEREOF;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER PLEDGOR IN ANY SUCH PROCEEDING
IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT; AND
(V) AGREES THAT SECURED PARTY RETAINS THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST
PLEDGOR IN THE COURTS OF ANY OTHER JURISDICTION.
17. Other Provisions. This Pledge Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof. No provision
hereof may be modified without the written consent of the party against whom
enforcement may be sought. Neither the Secured Parties nor any of their
attorneys or agents shall be liable to Pledgor for any loss or damage caused by
any act or omission on the part of any of them unless such loss or damage shall
have been caused by the gross negligence or willful misconduct of such person.
Neither this Pledge Agreement nor any rights, interests or obligations hereunder
may be assigned or delegated by Pledgor or the Secured Parties without the prior
written consent of the other. This Pledge Agreement shall be binding upon the
successors and permitted assigns of Pledgor and shall inure to the benefit of
the successors and permitted assigns of the Secured Parties. In the event any
one or more of the provisions contained in this Pledge Agreement should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained shall not be affected or
impaired in any way. Section headings used herein are for convenience only and
shall not affect the construction of this Pledge Agreement.
[Remainder of page intentionally left blank]
8
IN WITNESS WHEREOF, the parties hereto have executed this Pledge and
Security Agreement as of the date first written above.
PLEDGOR:
ACCESS INTEGRATED TECHNOLOGIES, INC.
By: /s/ A. Xxxx Xxxx
---------------------------------
A. Xxxx Xxxx
President and Chief Executive Officer
SECURED PARTIES:
/s/ Xxxxx Xxxxx
---------------------------------------
Xxxxx Xxxxx
/s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxxx
COMPANY:
HOLLYWOOD SOFTWARE, INC.
(solely with respect to Sections 3 through
5 of this Agreement)
By:
------------------------------
Name:
Title:
9
