EXHIBIT 4.13.7
STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement (this "Agreement"), dated as of April 29,
2005, among Laurus Master Fund, Ltd., (the "Pledgee"), Epixtar Corp., a Florida
corporation (the "Company"), and each of the other undersigned pledgors (the
Company and each such other undersigned pledgor, a "Pledgor" and collectively,
the "Pledgors").
BACKGROUND
Each of the Company, Voxx Corporation, a Florida corporation, and the
Pledgee has entered into a Securities Purchase Agreement, dated as of the date
hereof (as amended, modified, restated or supplemented from time to time, the
"Securities Purchase Agreement"), pursuant to which the Pledgee provides or will
provide certain financial accommodations to the Company.
In order to induce the Pledgee to provide or continue to provide the
financial accommodations described in the Securities Purchase Agreement, each
Pledgor has agreed to pledge and grant a security interest in the collateral
described herein to the Pledgee on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Defined Terms. All capitalized terms used herein which are not
defined shall have the meanings given to them in the Securities Purchase
Agreement.
2. Pledge and Grant of Security Interest. To secure the full and
punctual payment and performance of (the following clauses (a) and (b),
collectively, the "Indebtedness") (a) the obligations under the Securities
Purchase Agreement and the Related Agreements referred to in the Securities
Purchase Agreement (the Securities Purchase Agreement and the Related
Agreements, as each may be amended, restated, modified and/or supplemented from
time to time, collectively, the "Documents") and (b) all other indebtedness,
obligations and liabilities of each Pledgor and/or any other subsidiary of the
Company to the Pledgee whether now existing or hereafter arising, direct or
indirect, liquidated or unliquidated, absolute or contingent, due or not due and
whether under, pursuant to or evidenced by a note, agreement, guaranty,
instrument or otherwise (in each case, irrespective of the genuineness,
validity, regularity or enforceability of such Indebtedness, or of any
instrument evidencing any of the Indebtedness or of any collateral therefor or
of the existence or extent of such collateral, and irrespective of the
allowability, allowance or disallowance of any or all of such in any case
commenced by or against any Pledgor under Xxxxx 00, Xxxxxx Xxxxxx Code,
including, without limitation, obligations or indebtedness of each Pledgor
and/or any other subsidiary of the Company for post-petition interest, fees,
costs and charges that would have accrued or been added to the Indebtedness but
for the commencement of such case, and irrespective of the allowability,
allowance or disallowance of such post-petition interest, fees, costs and
charges), each Pledgor hereby pledges, assigns, hypothecates, transfers and
grants a security interest to Pledgee in all of the following (the
"Collateral"):
(a) the shares of stock set forth on Schedule A annexed
hereto (which shall explicitely exclude the shares of Epixtar Marketing Corp., a
Florida corporation, until such time as such shares are released from the escrow
arrangement by and between the Company and the previous owners thereof) and
expressly made a part hereof (together with any additional shares of stock or
other equity interests acquired by any Pledgor after the date hereof, the
"Pledged Stock"), the certificates representing the Pledged Stock and all
dividends, cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Stock;
(b) all additional shares of stock of any issuer (each,
an "Issuer") of the Pledged Stock from time to time acquired by any Pledgor in
any manner, including, without limitation, stock dividends or a distribution in
connection with any increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares, stock split, spin-off or
split-off (which shares shall be deemed to be part of the Collateral), and the
certificates representing such additional shares, and all dividends, cash,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such shares; and
(c) all options and rights, whether as an addition to, in
substitution of or in exchange for any shares of any Pledged Stock and all
dividends, cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all such options and rights.
3. Delivery of Collateral. All certificates representing or
evidencing the Pledged Stock shall be delivered to and held by or on behalf of
Pledgee pursuant hereto and shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to
Pledgee. Each Pledgor hereby authorizes the Issuer upon demand by the Pledgee to
deliver any certificates, instruments or other distributions issued in
connection with the Collateral directly to the Pledgee, in each case to be held
by the Pledgee, subject to the terms hereof. Upon an Event of Default (as
defined below) under the Note that has occurred and is continuing beyond any
applicable grace period, the Pledgee shall have the right, during such time in
its discretion and without notice to the Pledgor, to transfer to or to register
in the name of the Pledgee or any of its nominees any or all of the Pledged
Stock. In addition, the Pledgee shall have the right at such time to exchange
certificates or instruments representing or evidencing Pledged Stock for
certificates or instruments of smaller or larger denominations.
4. Representations and Warranties of each Pledgor. Each Pledgor
jointly and severally represents and warrants to the Pledgee (which
representations and warranties shall be deemed to continue to be made until all
of the Indebtedness has been paid in full and each Document and each agreement
and instrument entered into in connection therewith has been irrevocably
terminated) that:
(a) the execution, delivery and performance by each
Pledgor of this Agreement and the pledge of the Collateral hereunder do not and
will not result in any violation of any agreement, indenture, instrument,
license, judgment, decree, order, law, statute, ordinance or other governmental
rule or regulation applicable to any Pledgor;
(b) this Agreement constitutes the legal, valid, and
binding obligation of each Pledgor enforceable against each Pledgor in
accordance with its terms;
(c) (i) all Pledged Stock owned by each Pledgor is set
forth on Schedule A hereto and (ii) each Pledgor is the direct and beneficial
owner of each share of the Pledged Stock;
(d) all of the shares of the Pledged Stock have been duly
authorized, validly issued and are fully paid and nonassessable;
(e) no consent or approval of any person, corporation,
governmental body, regulatory authority or other entity, is or will be necessary
for (i) the execution, delivery and performance of this Agreement, (ii) the
exercise by the Pledgee of any rights with respect to the Collateral or (iii)
the pledge and assignment of, and the grant of a security interest in, the
Collateral hereunder;
(f) there are no pending or, to the best of Pledgor's
knowledge, threatened actions or proceedings before any court, judicial body,
administrative agency or arbitrator which may materially adversely affect the
Collateral;
(g) each Pledgor has the requisite power and authority to
enter into this Agreement and to pledge and assign the Collateral to the Pledgee
in accordance with the terms of this Agreement.
(h) each Pledgor owns each item of the Collateral and,
except for encumbrances securing (x) the Indebtedness and (ii) the Laurus
Obligations (as defined in the Intercreditor Agreement), the Collateral shall
be, immediately following the closing of the transactions contemplated by the
Documents, free and clear of any other security interest, pledge, claim, lien,
charge, hypothecation, assignment, offset or encumbrance whatsoever
(collectively, "Liens").
(i) there are no restrictions on transfer of the Pledged
Stock contained in the certificate of incorporation or by-laws (or equivalent
organizational documents) of the Issuer or otherwise which have not otherwise
been enforceably and legally waived by the necessary parties.
(j) none of the Pledged Stock has been issued or
transferred in violation of the securities registration, securities disclosure
or similar laws of any jurisdiction to which such issuance or transfer may be
subject.
(k) the pledge and assignment of the Collateral and the
grant of a security interest under this Agreement vest in the Pledgee all rights
of each Pledgor in the Collateral as contemplated by this Agreement.
(l) the Pledged Stock constitutes one hundred percent
(100%) of the issued and outstanding shares of capital stock of each Issuer,
other than Voxx Corporation, of which Epixtar Corp. owns the outstanding shares
set forth on Schedule A hereto.
5. Covenants. Each Pledgor jointly and severally covenants that,
until the Indebtedness shall be satisfied in full and each Document and each
agreement and instrument entered into in connection therewith is irrevocably
terminated:
(a) Other than the issuances to the Laurus Creditors (as
defined in the Intercreditor Agreement) that are contemplated by the Laurus
Documents (as defined in the Intercreditor Agreement) and/or issuances to the
Sands Creditors (as defined in the Intercreditor Agreement) that are
contemplated by the Sands Documents (as defined in the Intercreditor Agreement),
no Pledgor will sell, assign, transfer, convey, or otherwise dispose of its
rights in or to the Collateral or any interest therein; nor will any Pledgor
create, incur or permit to exist any Lien whatsoever with respect to any of the
Collateral or the proceeds thereof other than that created hereby.
(b) Each Pledgor will, at its expense, defend Pledgee's
right, title and security interest in and to the Collateral against the claims
of any other party.
(c) Each Pledgor shall at any time, and from time to
time, upon the written request of Pledgee, execute and deliver such further
documents and do such further acts and things as Pledgee may reasonably request
in order to effect the purposes of this Agreement including, but without
limitation, delivering to Pledgee upon the occurrence of an Event of Default
irrevocable proxies in respect of the Collateral in form satisfactory to
Pledgee. Until receipt thereof, upon an Event of Default that has occurred and
is continuing beyond any applicable grace period, this Agreement shall
constitute Pledgor's proxy to Pledgee or its nominee to vote all shares of
Collateral then registered in each Pledgor's name.
(d) Other than (i) issuances to the Laurus Creditors (as
defined in the Intercreditor Agreement) that are contemplated by the Laurus
Documents (as defined in the Intercreditor Agreement) , (ii) issuances to the
Sands Creditors (as defined in the Intercreditor Agreement) that are
contemplated by the Sands Documents (as defined in the Intercreditor Agreement)
or (iii) issuances to the creditors in respect of the Bridge Loan Indebtedness
in accordance with the terms set forth in Section 6.12(e)(i)(v) of the
Securities Purchase Agreement, no Pledgor will consent to or approve the
issuance of (i) any additional shares of any class of capital stock or other
equity interests of the Issuer; or (ii) any securities convertible either
voluntarily by the holder thereof or automatically upon the occurrence or
nonoccurrence of any event or condition into, or any securities exchangeable
for, any such shares, unless, in either case, such shares are pledged as
Collateral pursuant to this Agreement.
6. Voting Rights and Dividends. In addition to the Pledgee's
rights and remedies set forth in Section 8 hereof, in case an Event of Default
shall have occurred and be continuing, beyond any applicable cure period, the
Pledgee shall (i) be entitled to vote the Collateral, (ii) be entitled to give
consents, waivers and ratifications in respect of the Collateral (each Pledgor
hereby irrevocably constituting and appointing the Pledgee, with full power of
substitution, the proxy and attorney-in-fact of each Pledgor for such purposes)
and (iii) be entitled to collect and receive for its own use cash dividends paid
on the Collateral. No Pledgor shall be permitted to exercise or refrain from
exercising any voting rights or other powers if, in the reasonable judgment of
the Pledgee, such action would have a material adverse effect on the value of
the Collateral or any part thereof; and, provided, further, that following the
occurrence and during the continuance of any Event of Default beyond any
applicable grace period, each Pledgor shall give at least five (5) days' written
notice of the manner in which such Pledgor intends to exercise, or the reasons
for refraining from exercising, any voting rights or other powers other than
with respect to any election of directors and voting with respect to any
incidental matters. Following the occurrence and during the continuance of an
Event of Default beyond any applicable grace period, all dividends and all other
distributions in respect of any of the Collateral, shall be delivered to the
Pledgee to hold as Collateral and shall, if received by any Pledgor, be received
in trust for the benefit of the Pledgee, be segregated from the other property
or funds of any other Pledgor, and be forthwith delivered to the Pledgee as
Collateral in the same form as so received (with any necessary endorsement).
7. Event of Default. An Event of Default shall be deemed to have
occurred and may be declared by the Pledgee upon the happening of any of the
following events:
(a) An "Event of Default" under any Document or any
agreement or note related to any Document shall have occurred and be continuing
beyond any applicable cure period;
(b) Any Pledgor shall default in the performance of any
of its obligations under any agreement between any Pledgor and Pledgee,
including, without limitation, this Agreement, and such default shall not be
cured for a period of thirty (30) days after the occurrence thereof;
(c) Any representation or warranty of any Pledgor made
herein, in any Document or in any agreement, statement or certificate given in
writing pursuant hereto or thereto or in connection herewith or therewith shall
be false or misleading in any material respect and shall not be cured for a
period of thirty (30) days after the occurrence thereof;
(d) Any portion of the Collateral is subjected to levy of
execution, attachment, distraint or other judicial process; or any portion of
the Collateral is the subject of a claim (other than by the Pledgee) of a Lien
or other right or interest in or to the Collateral and such levy or claim shall
not be cured, disputed or stayed within a period of thirty (30) business days
after the occurrence thereof; or
(e) Any Pledgor shall (i) apply for, consent to, or
suffer to exist the appointment of, or the taking of possession by, a receiver,
custodian, trustee, liquidator or other fiduciary of itself or of all or a
substantial part of its property, (ii) make a general assignment for the benefit
of creditors, (iii) commence a voluntary case under any state or federal
bankruptcy laws (as now or hereafter in effect), (iv) be adjudicated a bankrupt
or insolvent, (v) file a petition seeking to take advantage of any other law
providing for the relief of debtors, (vi) acquiesce to, or fail to have
dismissed, within forty-five (45) days, any petition filed against it in any
involuntary case under such bankruptcy laws, or (vii) take any action for the
purpose of effecting any of the foregoing.
8. Remedies. In case an Event of Default shall have occurred and
be declared by the Pledgee, the Pledgee may:
(a) Transfer any or all of the Collateral into its name,
or into the name of its nominee or nominees;
(b) Exercise all corporate rights with respect to the
Collateral including, without limitation, all rights of conversion, exchange,
subscription or any other rights, privileges or options pertaining to any shares
of the Collateral as if it were the absolute owner thereof, including, but
without limitation, the right to exchange, at its discretion, any or all of the
Collateral upon the merger, consolidation, reorganization, recapitalization or
other readjustment of the Issuer thereof, or upon the exercise by the Issuer of
any right, privilege or option pertaining to any of the Collateral, and, in
connection therewith, to deposit and deliver any and all of the Collateral with
any committee, depository, transfer agent, registrar or other designated agent
upon such terms and conditions as it may determine, all without liability except
to account for property actually received by it; and
(c) Subject to any requirement of applicable law, sell,
assign and deliver the whole or, from time to time, any part of the Collateral
at the time held by the Pledgee, at any private sale or at public auction, with
or without demand, advertisement or notice of the time or place of sale or
adjournment thereof or otherwise (all of which are hereby waived, except such
notice as is required by applicable law and cannot be waived), for cash or
credit or for other property for immediate or future delivery, and for such
price or prices and on such terms as the Pledgee in its sole discretion may
determine, or as may be required by applicable law.
Each Pledgor hereby waives and releases any and all right or
equity of redemption, whether before or after sale hereunder. At any such sale,
unless prohibited by applicable law, the Pledgee may bid for and purchase the
whole or any part of the Collateral so sold free from any such right or equity
of redemption. All moneys received by the Pledgee hereunder whether upon sale of
the Collateral or any part thereof or otherwise shall be held by the Pledgee and
applied by it as provided in Section 10 hereof. No failure or delay on the part
of the Pledgee in exercising any rights hereunder shall operate as a waiver of
any such rights nor shall any single or partial exercise of any such rights
preclude any other or future exercise thereof or the exercise of any other
rights hereunder. The Pledgee shall have no duty as to the collection or
protection of the Collateral or any income thereon nor any duty as to
preservation of any rights pertaining thereto, except to apply the funds in
accordance with the requirements of Section 10 hereof. The Pledgee may exercise
its rights with respect to property held hereunder without resort to other
security for or sources of reimbursement for the Indebtedness. In addition to
the foregoing, Pledgee shall have all of the rights, remedies and privileges of
a secured party under the Uniform Commercial Code of New York regardless of the
jurisdiction in which enforcement hereof is sought.
9. Private Sale. Each Pledgor recognizes that the Pledgee may be
unable to effect (or to do so only after delay which would adversely affect the
value that might be realized from the Collateral) a public sale of all or part
of the Collateral by reason of certain prohibitions contained in the Securities
Act, and may be compelled to resort to one or more private sales to a restricted
group of purchasers who will be obliged to agree, among other things, to acquire
such Collateral for their own account, for investment and not with a view to the
distribution or resale thereof. Each Pledgor agrees that any such private sale
may be at prices and on terms less favorable to the seller than if sold at
public sales and that such private sales shall be deemed to have been made in a
commercially reasonable manner. Each Pledgor agrees that the Pledgee has no
obligation to delay sale of any Collateral for the period of time necessary to
permit the Issuer to register the Collateral for public sale under the
Securities Act. Any sale made pursuant to this Section 9 shall be in accordance
with federal and state securities laws.
10. Proceeds of Sale. The proceeds of any collection, recovery,
receipt, appropriation, realization or sale of the Collateral shall be applied
by the Pledgee as follows:
(a) First, to the payment of all costs, reasonable
expenses and charges of the Pledgee and to the reimbursement of the Pledgee for
the prior payment of such costs, reasonable expenses and charges incurred in
connection with the care and safekeeping of the Collateral (including, without
limitation, the reasonable expenses of any sale or any other disposition of any
of the Collateral), the expenses of any taking, attorneys' fees and reasonable
expenses, court costs, any other fees or expenses incurred or expenditures or
advances made by Pledgee in the protection, enforcement or exercise of its
rights, powers or remedies hereunder;
(b) Second, to the payment of the Indebtedness, in whole
or in part, in such order as the Pledgee may elect, whether or not such
Indebtedness is then due;
(c) Third, to such persons, firms, corporations or other
entities as required by applicable law including, without limitation, Section
9-504(1)(c) of the UCC; and
(d) Fourth, to the extent of any surplus to the Pledgors
or as a court of competent jurisdiction may direct.
In the event that the proceeds of any collection, recovery,
receipt, appropriation, realization or sale are insufficient to satisfy the
Indebtedness, each Pledgor shall be jointly and severally liable for the
deficiency plus the costs and fees of any attorneys employed by Pledgee to
collect such deficiency.
11. Waiver of Marshaling. Each Pledgor hereby waives any right to
compel any marshaling of any of the Collateral.
12. No Waiver. Any and all of the Pledgee's rights with respect to
the Liens granted under this Agreement shall continue unimpaired, and Pledgor
shall be and remain obligated in accordance with the terms hereof,
notwithstanding (a) the bankruptcy, insolvency or reorganization of any Pledgor,
(b) the release or substitution of any item of the Collateral at any time, or of
any rights or interests therein, or (c) any delay, extension of time, renewal,
compromise or other indulgence granted by the Pledgee in reference to any of the
Indebtedness. Each Pledgor hereby waives all notice of any such delay,
extension, release, substitution, renewal, compromise or other indulgence, and
hereby consents to be bound hereby as fully and effectively as if such Pledgor
had expressly agreed thereto in advance. No delay or extension of time by the
Pledgee in exercising any power of sale, option or other right or remedy
hereunder, and no failure by the Pledgee to give notice or make demand, shall
constitute a waiver thereof, or limit, impair or prejudice the Pledgee's right
to take any action against any Pledgor or to exercise any other power of sale,
option or any other right or remedy.
13. Expenses. The Collateral shall secure, and each Pledgor shall
pay to Pledgee on demand, from time to time, all reasonable costs and expenses,
(including but not limited to, reasonable attorneys' fees and costs, taxes, and
all transfer, recording, filing and other charges) of, or incidental to, the
custody, care, transfer, administration of the Collateral or any other
collateral, or in any way relating to the enforcement, protection or
preservation of the rights or remedies of the Pledgee under this Agreement or
with respect to any of the Indebtedness.
14. The Pledgee Appointed Attorney-In-Fact and Performance by the
Pledgee. Upon the occurrence of an Event of Default, each Pledgor hereby
irrevocably constitutes and appoints the Pledgee as such Pledgor's true and
lawful attorney-in-fact, with full power of substitution, to execute,
acknowledge and deliver any instruments and to do in such Pledgor's name, place
and stead, all such acts, things and deeds for and on behalf of and in the name
of such Pledgor, which such Pledgor could or might do or which the Pledgee may
deem necessary, desirable or convenient to accomplish the purposes of this
Agreement, including, without limitation, to execute such instruments of
assignment or transfer or orders and to register, convey or otherwise transfer
title to the Collateral into the Pledgee's name. Each Pledgor hereby ratifies
and confirms all that said attorney-in-fact may so do and hereby declares this
power of attorney to be coupled with an interest and irrevocable. If any Pledgor
fails to perform any agreement herein contained, the Pledgee may itself perform
or cause performance thereof, and any costs and expenses of the Pledgee incurred
in connection therewith shall be paid by the Pledgors as provided in Section 10
hereof.
15. Waivers.
EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OTHER AGREEMENT EXECUTED OR DELIVERED BY
THEM IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE.
16. Recapture. Notwithstanding anything to the contrary in this
Agreement, if the Pledgee receives any payment or payments on account of the
Indebtedness, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver, or any other party under the
United States Bankruptcy Code, as amended, or any other federal or state
bankruptcy, reorganization, moratorium or insolvency law relating to or
affecting the enforcement of creditors' rights generally, common law or
equitable doctrine, then to the extent of any sum not finally retained by the
Pledgee, each Pledgor's obligations to the Pledgee shall be reinstated and this
Agreement shall remain in full force and effect (or be reinstated) until payment
shall have been made to Pledgee, which payment shall be due on demand.
17. Captions. All captions in this Agreement are included herein
for convenience of reference only and shall not constitute part of this
Agreement for any other purpose.
18. Miscellaneous.
(a) Notwithstanding anything to the contrary contained in
this Agreement, the terms and conditions of this Agreement shall be subject in
all respects to the terms and conditions of the Intercreditor Agreement. In the
event that the terms and conditions of this Agreement are in contravention of
the terms and conditions of the Intercreditor Agreement, the terms and
conditions of the Intercreditor Agreement shall prevail. This Agreement
constitutes the entire and final agreement among the parties with respect to the
subject matter hereof and may not be amended, modified, supplemented, restated,
terminated or waived except by a writing duly executed by the Pledgee and each
Pledgor.
(b) No waiver of any term or condition of this Agreement,
whether by delay, omission or otherwise, shall be effective unless in writing
and signed by the party sought to be charged, and then such waiver shall be
effective only in the specific instance and for the purpose for which given.
(c) In the event that any provision of this Agreement or
the application thereof to any Pledgor or any circumstance in any jurisdiction
governing this Agreement shall, to any extent, be invalid or unenforceable under
any applicable statute, regulation, or rule of law, such provision shall be
deemed inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform to such statute, regulation or rule of law, and the
remainder of this Agreement and the application of any such invalid or
unenforceable provision to parties, jurisdictions, or circumstances other than
to whom or to which it is held invalid or unenforceable shall not be affected
thereby, nor shall same affect the validity or enforceability of any other
provision of this Agreement.
(d) This Agreement shall be binding upon each Pledgor,
and each Pledgor's successors and assigns, and shall inure to the benefit of the
Pledgee and its successors and assigns.
(e) Any notice or other communication required or
permitted pursuant to this Agreement shall be given in accordance with the
Securities Purchase Agreement.
(f) This Agreement shall be governed by and construed and
enforced in all respects in accordance with the laws of the State of New York
applied to contracts to be performed wholly within the State of New York.
(g) EXCEPT AS SET FORTH BELOW IN THIS SECTION 18(g), ANY
AND ALL DISPUTES, CONTROVERSIES AND CLAIMS THAT ANY PLEDGOR MAY ASSERT AGAINST
THE PLEDGEE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER DOCUMENT
SHALL BE DETERMINED EXCLUSIVELY BY ARBITRATION (EACH SUCH ARBITRATION, AN
"ARBITRATION") IN NEW YORK CITY BEFORE A PANEL OF THREE NEUTRAL ARBITRATORS
AGREED TO BY THE PELDGEE AND THE COMPANY (COLLECTIVELY, THE "ARBITRATORS") IN
ACCORDANCE WITH AND PURSUANT TO THE THEN EXISTING COMMERCIAL ARBITRATION RULES
OF THE AMERICAN ARBITRATION ASSOCIATION. EACH PLEDGEE HEREBY IRREVOCABLY WAIVES
ANY RIGHT TO ASSERT SUCH CLAIMS IN ANY OTHER FORUM. THE ARBITRATORS SHALL HAVE
THE POWER IN THEIR DISCRETION TO AWARD SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF
(BUT SHALL NOT HAVE THE POWER TO RENDER ANY INCIDENTAL, SPECIAL OR PUNITIVE
DAMAGES) AND REASONABLE ATTORNEYS' FEES AND EXPENSES TO ANY PARTY IN ANY
ARBITRATION. THE ARBITRATORS MAY NOT CHANGE, MODIFY OR ALTER ANY EXPRESS
CONDITION, TERM OR PROVISION OF THIS AGREEMENT OR OF ANY RELATED AGREEMENT NOR
SHALL THEY HAVE THE POWER TO RENDER ANY AWARD AGAINST THE PLEDGEE THAT WOULD
HAVE SUCH EFFECT. EACH ARBITRATION AWARD SHALL BE FINAL AND BINDING UPON THE
PARTIES SUBJECT THERETO AND JUDGMENT MAY BE ENTERED THEREON IN ANY COURT OF
COMPETENT JURISDICTION. THE SERVICE OF ANY NOTICE, PROCESS, MOTION OR OTHER
DOCUMENT IN CONNECTION WITH AN ARBITRATION OR FOR THE ENFORCEMENT OF ANY
ARBITRATION AWARD MAY BE MADE IN THE SAME MANNER AS COMMUNICATIONS MAY BE GIVEN
UNDER SECTION 18(e) HEREOF. NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF
THIS SECTION 18(g) NOR ANY OTHER PROVISION CONTAINED IN THIS AGREEMENT OR IN ANY
OTHER DOCUMENT SHALL LIMIT IN ANY MANNER WHATSOEVER THE PLEDGEE'S RIGHT TO
COMMENCE AN ACTION AGAINST OR IN CONNECTION WITH ANY PLEDGOR OR ANY OF THEIR
RESPECTIVE PROPERTIES IN ANY COURT OF COMPETENT JURISDICTION OR OTHERWISE
UTILIZE JUDICIAL PROCESS IN CONNECTION WITH OR ARISING OUT OF THE PLEDGEE'S
RIGHTS AND REMEDIES UNDER THIS AGREEMENT AND/OR ANY OTHER DOCUMENT OR OTHERWISE
(ANY SUCH ACTION, A "COURT ACTION"). COURT ACTIONS MAY BE BROUGHT BY THE PLEDGEE
IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION AND EACH PLEDGOR
IRREVOCABLY SUBMITS TO THE JURISDICTION OF SUCH STATE AND FEDERAL COURTS AND
IRREVOCABLY WAIVES ANY CLAIM OR DEFENSE OF INCONVENIENT FORUM OR LACK OF
PERSONAL JURISDICTION IN SUCH FORUM OR RIGHT OF REMOVAL OR RIGHT TO JURY TRIAL
UNDER ANY APPLICABLE LAW OR DECISION OR OTHERWISE. SERVICE OF ANY NOTICE,
PROCESS, MOTION OR OTHER DOCUMENT IN CONNECTION WITH A COURT ACTION MAY BE MADE
IN THE SAME MANNER AS COMMUNICATIONS MAY BE GIVEN UNDER SECTION 18(e). IN
ADDITION, THE PLEDGEE MAY SERVE PROCESS IN ANY OTHER MANNER PERMITTED UNDER
APPLICABLE LAW.
(h) It is understood and agreed that any person or entity
that desires to become a Pledgor hereunder, or is required to execute a
counterpart of this Agreement after the date hereof pursuant to the requirements
of any Document, shall become a Pledgor hereunder by (x) executing a Joinder
Agreement in form and substance satisfactory to the Pledgee, (y) delivering
supplements to such exhibits and annexes to such Documents as the Pledgee shall
reasonably request and/or set forth in such joinder agreement and (z) taking all
actions as specified in this Agreement as would have been taken by such Pledgor
had it been an original party to this Agreement, in each case with all documents
required above to be delivered to the Pledgee and with all documents and actions
required above to be taken to the reasonable satisfaction of the Pledgee.
(i) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute one and the same agreement. Any signature
delivered by a party by facsimile transmission shall be deemed an original
signature hereto.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first written above.
EPIXTAR CORP.
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: CEO
NOL GROUP, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
NATIONAL ONLINE SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
LIBERTY ONLINE SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
AMERIPAGES, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
B2B ADVANTAGE, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
EPIXTAR INTERNATIONAL CONTACT
CENTER GROUP, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
VOXX CORPORATION
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: CEO
EPIXTAR MARKETING CORP.
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: CEO
LAURUS MASTER FUND, LTD.
By: /s/ Authorized Officer
-------------------------------
Name:
Title:
SCHEDULE A to the Stock Pledge Agreement
Pledged Stock
-------------------------- ----------------------- -------------------- --------------------- --------------- ------------------
Pledgor Issuer Class of Stock Stock Certificate Par Value Number of Shares
Number
-------------------------- ----------------------- -------------------- --------------------- --------------- ------------------
[Insert Pledgors and
Pledged Stock]
-------------------------- ----------------------- -------------------- --------------------- --------------- ------------------
-------------------------- ----------------------- -------------------- --------------------- --------------- ------------------
-------------------------- ----------------------- -------------------- --------------------- --------------- ------------------
