Exhibit 99.5
STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement (this "Agreement"), dated as of January 10,
2005, among Laurus Master Fund, Ltd. (the "Pledgee"), and Return on Investment
Corporation, a Delaware corporation (the "Company" or "Pledgor").
BACKGROUND
The Company and certain of its subsidiaries have entered into a
Security Agreement dated as of the date hereof (as amended, modified, restated
or supplemented from time to time, the "Security Agreement"), pursuant to which
the Pledgee provides or will provide certain financial accommodations to the
Company and such subsidiaries.
In order to induce the Pledgee to provide or continue to provide the
financial accommodations described in the Security Agreement, the 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 Security 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 Security
Agreement and the Ancillary Agreements referred to and as defined in the
Security Agreement (the Security Agreement and the Ancillary 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 the Pledgor 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 the Pledgor under Xxxxx 00, Xxxxxx Xxxxxx Code,
including, without limitation, obligations or indebtedness of the Pledgor 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), the 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
and expressly made a part hereof (together with any additional shares of stock
or other equity interests acquired by the Pledgor, 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
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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 the 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. The Pledgor hereby authorizes each 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) 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 the Pledgor. The Pledgor
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 the 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 the Pledgor;
(b) this Agreement constitutes the legal, valid, and binding
obligation of the Pledgor enforceable against the Pledgor in accordance with its
terms;
(c) (i) all Pledged Stock owned by the Pledgor is set forth on
Schedule A hereto and (ii) the 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;
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(e) upon repayment of the Company's indebtedness to Silicon
Valley Bank and simultaneous release by such lender of all collateral interest
it holds, 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) upon repayment of the Company's indebtedness to Silicon
Valley Bank and simultaneous release by such lender of all collateral interest
it holds, the 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) the Pledgor owns each item of the Collateral and, except
for the pledge and security interest granted to Pledgee hereunder, 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
the Pledgor in the Collateral as contemplated by this Agreement; and
(l) the Pledged Stock constitutes one hundred percent (100%)
of the issued and outstanding shares of capital stock of each Issuer.
5. Covenants. The Pledgor 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) Except as expressly permitted pursuant to and in
accordance with the terms of Section 13(l)(xiv) of the Security Agreement, the
Pledgor will not sell, assign, transfer, convey, or otherwise dispose of its
rights in or to the Collateral or any interest therein; nor will the 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.
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(b) The 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) The 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 the
Pledgor's proxy to Pledgee or its nominee to vote all shares of Collateral then
registered in the Pledgor's name.
(d) The Pledgor will not 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 (the Pledgor hereby
irrevocably constituting and appointing the Pledgee, with full power of
substitution, the proxy and attorney-in-fact of the Pledgor for such purposes)
and (iii) be entitled to collect and receive for its own use cash dividends paid
on the Collateral. The Pledgor shall not 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 the Pledgor
shall give at least five (5) days' written notice of the manner in which the
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 of an Event of Default, 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 the Pledgor, be received in trust for the
benefit of the Pledgee, be segregated from the other property or funds of the
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) The Pledgor shall default in the performance of any of its
obligations under any agreement between the Pledgor and Pledgee, including,
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without limitation, this Agreement, and such default shall not be cured for a
period of twenty (20) days after the occurrence thereof;
(c) Any representation or warranty of the 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;
(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 twenty (20) business days
after the occurrence thereof; or
(e) The 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 sixty
(60) 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
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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.
The 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. The 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. The 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. The 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.
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, the UCC;
and
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(d) Fourth, to the extent of any surplus to the Pledgor 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, the Pledgor shall be liable for the deficiency plus the costs and
fees of any attorneys employed by Pledgee to collect such deficiency.
11. Waiver of Marshaling. The 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 the Pledgor
shall be and remain obligated in accordance with the terms hereof,
notwithstanding (a) the bankruptcy, insolvency or reorganization of the 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. The 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 the 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 the Pledgor or to exercise any other power of sale,
option or any other right or remedy.
13. Expenses. The Collateral shall secure, and the 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, the Pledgor hereby
irrevocably constitutes and appoints the Pledgee as the Pledgor's true and
lawful attorney-in-fact, with full power of substitution, to execute,
acknowledge and deliver any instruments and to do in the Pledgor's name, place
and stead, all such acts, things and deeds for and on behalf of and in the name
of the Pledgor, which the 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. The 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 the 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 Pledgor as provided in Section 10
hereof.
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15. Waivers.
(a) 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 AND EACH PARTY HERETO HEREBY AGREES
AND CONSENTS THAT ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF EACH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
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, the 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) This Agreement constitutes the entire and final agreement
among the parties with respect to the subject matter hereof and may not be
changed, terminated or otherwise varied except by a writing duly executed by the
parties hereto.
(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 the 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
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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 the Pledgor, and the
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 Security
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) THE PLEDGOR EXPRESSLY CONSENTS TO THE JURISDICTION AND
VENUE OF EACH COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE OF NEW YORK
FOR ALL PURPOSES IN CONNECTION WITH THIS AGREEMENT. ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF,
RELATED TO OR CONNECTED WITH THIS AGREEMENT SHALL BE BROUGHT ONLY IN A STATE
COURT LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK. THE PLEDGOR FURTHER
CONSENTS THAT ANY SUMMONS, SUBPOENA OR OTHER PROCESS OR PAPERS (INCLUDING,
WITHOUT LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION TO EITHER OF THE
AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN CONNECTION WITH ANY
PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF THE STATE OF NEW YORK
OR THE SOUTHERN DISTRICT OF NEW YORK BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, OR BY PERSONAL SERVICE PROVIDED A REASONABLE TIME FOR
APPEARANCE IS PERMITTED, OR IN SUCH OTHER MANNER AS MAY BE PERMISSIBLE UNDER THE
RULES OF SAID COURTS. THE PLEDGOR WAIVES ANY OBJECTION TO JURISDICTION AND VENUE
OF ANY ACTION INSTITUTED HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK
OF JURISDICTION OR VENUE OR BASED UPON FORUM NON CONVENIENS.
(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 Stock Pledge 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 (z) taking all actions as specified in this
Agreement as would have been taken by the 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.
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(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]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first written above.
RETURN ON INVESTMENT CORPORATION
By: /s/ Xxxxxxx Xxxx
--------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
LAURUS MASTER FUND, LTD.
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Associate
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SCHEDULE A to the Stock Pledge Agreement
Pledged Stock
----------------------- ------------- ------------------ ------------------- ----------- -----------
Stock Certificate Number of
Pledgor Issuer Class of Stock Number Par Value Shares
----------------------- ------------- ------------------ ------------------- ----------- -----------
Return on Investment GO Software,
Corporation Inc. Common Stock 1 None 1000
----------------------- ------------- ------------------ ------------------- ----------- -----------
Tectonic
Return on Investment Solutions,
Corporation Inc. Common Xxxxx 00 Xxxx 0000
----------------------- ------------- ------------------ ------------------- ----------- -----------
