Exhibit 10.5
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FIRST AMENDMENT TO PLEDGE AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO PLEDGE AND SECURITY AGREEMENT (the
"Amendment"), dated as of July 6, 2001, is made and entered into by and between
Xxxx Interactive Services, Inc. (the "Pledgor") and France Telecom Technologies
Investments f/k/a France Telecom Technologies (the "Pledgee").
Recitals
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A. The Pledgor and Pledgee are parties to a Pledge and Security
Agreement dated as of May 2, 2001 (the "Pledge"), which secures the Pledgor's
guaranty of all of the payment and performance covenants, agreements and
obligations contained in the Note Purchase Agreement dated as of May 2, 2001, as
amended by the First Amendment to Note Purchase Agreement of even date herewith
(the "Purchase Agreement") and all other Transaction Documents (as defined in
the Purchase Agreement) pursuant to the Corporate Guaranty (the "Guaranty")
dated as of May 2, 2001 from the Pledgor to and in favor of the Pledgee.
B. The Pledgor, Jabber, Inc. f/k/a Xxxxxx.xxx, Inc. (the "Company")
and the Investor entered into the Purchase Agreement in connection with the
Investor's proposed investment in the Company and the Investor's acquisition of
certain capital stock of the Company as outlined in the Series B Convertible
Preferred Stock Summary of Terms (the "Summary of Terms").
C. The Pledgor and the Pledgee desire to amend the Pledge as set
forth herein, and to ratify and confirm the Pledge as so amended.
Agreement
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NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations and warranties herein set forth and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used but not defined in this
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Amendment shall have the meanings given thereto in the Pledge.
2. Agreements and Amendments to the Pledge.
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a. The Company, Xxxx and the Investor confirm and agree that, for
the purposes of clarification and the avoidance of doubt, the defined term
"Transaction Document" in the Pledge includes (i) the Purchase Agreement, (ii)
the Note, (iii) the Security Agreement, (iv) the Pledge Agreement, (v) the
Guaranty, (vi) the Stock Purchase Agreement dated as of
July 6, 2001 among the Company, Xxxx and the Investor, (vii) the Stockholders
Agreement dated as of July 6, 2001 among the Company, the Investor and the
parties set forth on Schedule A thereto, (viii) the Series A-1 and Series B
Convertible Preferred Stock Investor Rights Agreement dated as of July 6, 2001
among the Company and the parties set forth on Exhibit A thereto, (ix) the
Amended Certificate of Designation of Series A, (x) the Amended Certificate of
Designation of Series B, (xi) the Amended Certificate of Designation of Series C
and (xii) all other agreements, documents or instruments executed and delivered
by or on behalf of the Company or Xxxx in connection with the transactions
contemplated by any of the foregoing. The parties acknowledge that the Company
has changed its corporate name to Jabber, Inc. and that the Investor has changed
its corporate name to France Telecom Technologies Investments.
b. The Pledge is hereby amended by deleting Schedule 1 thereto and
substituting therefor the revised Schedule 1 attached hereto as Annex 1.
c. The Pledge is hereby amended by deleting the third paragraph of
Section 4 therefrom and substituting the following therefor:
"The Pledgee shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Pledged Shares or any
part thereof for any purpose in its sole discretion; provided,
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however, unless an Event of Default has occurred, Pledgee agrees
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that it will not, without the Pledgor's prior written consent,
vote any of the Pledged Stock: (i) in favor of any merger, other
corporate reorganization, sale of control or any transaction in
which all or substantially all of the assets of the Company are
sold or (ii) to amend or waive any provision of the Company's
certificate of incorporation or bylaws except as contemplated by
the Stock Purchase Agreement and (iii) shall vote the Shares for
election to the Board of Directors of the Company of the
Pledgor's nominees, two members of Board of Directors being
designated by the Pledgor and the remaining members (other than
the one selected by the Series B Shareholders) of the Board of
Directors being designated by the Pledgor following consultation
with and good faith consideration of the stated interests of the
Pledgee, it being understood that those two nominees are intended
to be good, capable and independent persons."
d. The Pledge is hereby amended by deleting clause (b) from Section
7 and re-designating clause (c) therein as clause (b) and re-designating clause
(d) therein as clause (c).
e. The Pledge is hereby amended by deleting Section 11 therefrom and
substituting the following therefor:
"11. Termination. Notwithstanding the payment in full
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of the principal and accrued interest under the Note, this
Agreement may not be cancelled and shall not be terminated, and
this Agreement remains in full force and effect, until the later
of (A) the payment in full of the principal and interest on the
Note, and (B) the expiration of the term of the
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Guarantor's obligations with respect to the representations,
warranties, covenants and indemnifications set forth in Section 6
of the Stock Purchase Agreement (the "Section 6 Term"), or, if
there are any outstanding demands, claims, causes of action or
assessments which have been asserted against the Guarantor prior
to the termination of the Section 6 Term, following resolution of
all such demands, claims, causes of action or assessments."
3. Representations and Warranties.
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a. The Pledgor hereby remakes and restates each of the
representations and warranties of such party in the Pledge effective as of the
date of this Amendment, which representations and warranties are incorporated
herein by reference as if fully set forth.
b. The Pledgor hereby further represents and warrants that this
Amendment has been duly authorized, executed and delivered by the Pledgor, and
that this Amendment is binding upon and enforceable against the Pledgor in
accordance with its terms.
4. Miscellaneous Provisions.
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a. This Amendment is an amendment to the Pledge, and the Pledge as
amended by this Amendment is hereby ratified, approved and confirmed in each and
every respect, and the parties hereto agree that the Pledge remains in full
force and effect in accordance with its terms. The Pledgor agrees and confirms
that the Pledge, as amended hereby, secures the payment of principal and
interest on the Note and the Pledgor's complete performance of the covenants,
agreements and obligations (monetary, performance or otherwise) contained in
Section 6 of the Stock Purchase Agreement. Nothing contained herein shall be
construed to deem paid the Note or to release or terminate, in whole or in part,
the Security Agreement, this Pledge or the Guaranty or any lien, pledge or
security interest granted pursuant thereto. All references to the Pledge in each
of the Transaction Documents and in any other document or instrument shall
hereafter be deemed to refer to the Pledge as amended hereby.
b. This Amendment shall be governed by and construed in accordance
with the laws of the State of Colorado, excluding that body of law relating to
conflict of laws.
c. This Amendment may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
d. The execution, delivery and effectiveness of this Amendment shall
not operate or be deemed to operate as a waiver of any rights, powers or
remedies of the Investor under the Pledge or any other Transaction Document or
constitute a waiver of any provision thereof.
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e. This Amendment shall be binding upon and inure to the benefit of
the Pledgor and the Pledgee, and their respective successors and assigns
permitted by the Pledge.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized 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 INVESTISSEMENTS
By: /s/ Xxxx Cozanet
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Name: Xxxx Cozanet
Title: Chief Executive Officer
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Annex 1
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Revised Schedule 1 attached hereto
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