STOCK PLEDGE AGREEMENT
STOCK
PLEDGE AGREEMENT (this "Agreement"), dated December 27, 2007 made by Xxxxxx
Xxxxxx (the “Pledgor”) in favor of Golden Gate Investors, Inc., a California
corporation (the "Pledgee").
W
I T N E S S E T H:
WHEREAS,
pursuant to the provisions of that certain Securities Purchase Agreement of
even
date herewith between xXxxXxxxxx.xxx (the "Company") and the Pledgee (the
"Purchase Agreement"), the Pledgee has agreed to lend to the Company and the
Company has agreed to borrow from the Pledgee an aggregate of $1,500,000,
$200,000 of which shall be advanced in cash as of the date of the closing of
the
Purchase Agreement (the “Cash Advance”) under certain terms and conditions set
forth in the Purchase Agreement and as further set forth in the Debenture (as
defined in the Purchase Agreement);
WHEREAS,
pursuant to the provisions of the Purchase Agreement, and as a condition to
the
obligation of the Pledgee to lend thereunder, the Pledgor has agreed to make
the
pledge contemplated by this Agreement in order to induce the Pledgee to perform
its obligations under the Purchase Agreement;
WHEREAS,
the Pledgor is a shareholder of the Company, and as such, will derive direct
and
indirect benefits from the Purchase Agreement; and
WHEREAS,
all capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Purchase Agreement.
NOW,
THEREFORE, in consideration of the premises, covenants and promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as
follows:
SECTION
1.
1.1
Pledge and Security
Interest. The Pledgor hereby pledges to the Pledgee, and
grants to the Pledgee a continuing security interest in, the following
(collectively, the "Pledged Collateral"):
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(a)
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Three
Million (3,000,000) shares of common stock (the "Pledged Shares"
or
“Pledged Collateral”) of the Company, in the aggregate, owned by the
Pledgor, which shall, for the term of this agreement, be placed in
the
name of the Pledgee, represented by the certificates identified
in Schedule 1(a) annexed hereto representing the Pledged Shares,
and all
dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in
exchange
for any or all of the Pledged Shares; and
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(b)
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all
proceeds of any and all of the foregoing Pledged Collateral, in whatever
form (including, without limitation, proceeds that constitute property
of
the types described above).
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1.2
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If
at any time during the term of the Debenture, the Volume Weighted
Average
Price per share of the Company’s Common Stock shall equal a price per
share that is equal to or less than $0.01 per share (as adjusted
for any
stock splits, stock dividends, combinations, subdivisions,
recapitalizations or the like) (the “Common Stock Event”) and the Pledgee
shall notify the Pledgor and the Company in writing of the occurrence
of
the Common Stock Event (the “Common Stock Event Notice”), such Common
Stock Event shall constitute an Event of Default under the terms
of the
Debenture and this Agreement, regardless of whether the Volume Weighted
Average Price of the Company’s Common Stock again shall equal a price per
share that is above $0.01 per share (as adjusted for any
stock splits,
stock dividends, combinations, subdivisions, recapitalizations or
the
like).
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For
purposes of this Agreement, “Volume Weighted Average Price” per share of the
Company’s Common Stock means the volume weighted average price of the Company’s
Common Stock during any Trading Day as reported on the NASDAQ OTCBB Exchange;
provided
further, that, if such security is not listed or admitted to trading on
the NASDAQ OTCBB, as reported on the principal national security exchange or
quotation system on which such security is quoted or listed or admitted to
trading, including without limitation the “pink sheets” through the Interdealer
Trading Quotation System, or, if not quoted or listed or admitted to trading
on
any national securities exchange or quotation system, the volume weighted
average price of the Company's Common Stock during any Trading Day on the
over-the-counter market as reported by Bloomberg LP or a similar generally
accepted reporting service, as the case may be. For purposes of this
Agreement, “Trading Day” means any day on which (i) purchases and sales of
securities on the principal national security exchange or quotation system
on
which the Company’s Common Stock are traded are reported thereon, or, if not
quoted or listed or admitted to trading on any national securities exchange
or
quotation system, as reported by Bloomberg LP or a similar generally accepted
reporting service, as the case may be, (ii) at least one bid for the trading
of
the Company’s Common Stock is reported and (iii) no event that results in a
material suspension or limitation of trading of the Company’s Common Stock
occurs.
SECTION
2.
Security for
Obligations. This Agreement secures the payment and
performance of the following obligations (collectively, the "Obligations"):
all
present and future indebtedness, obligations, covenants, duties and liabilities
of any kind or nature of the Company to the Pledgee now existing or hereafter
arising under or in connection with this Agreement, the Purchase Agreement,
the
Debenture, and any and all related agreements, documents and instruments, each
as now existing and as hereafter amended, modified and supplemented
(collectively, the "Transaction Documents"), provided however, that the
Obligations shall be limited at any given time to an amount not to exceed the
lesser of (i) the Cash Advance, or (ii) that portion of the Cash Advance that
has not been converted into the Company’s Common Stock under the terms of the
Debenture and remains represented by the outstanding principal balance of the
Debenture.
SECTION
3.
Delivery of Pledged
Collateral. Concurrently herewith, all certificates
representing or evidencing the Pledged Shares, in suitable form for transfer
by
delivery, and in the name of the Pledgee are being deposited with and delivered
to the Pledgee represented by four stock certificates each representing 750,000
shares of the Company’s Common Stock (each certificate referred to herein as a
“Pledged Shares Certificate”).
SECTION
4.
Representations
and
Warranties. The Pledgor represents and warrants as
follows:
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(a)
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The
Pledged Shares set forth opposite Pledgor’s name in Schedule 1(a) attached
hereto have been beneficially owned by the Pledgor for at least two
years
from the date hereof.
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(b)
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The
Pledgor is the legal, record and beneficial owner of the Pledged
Collateral represented opposite Pledgor’s name in Schedule 1(a) attached
hereto, free and clear of any lien, security interest, restriction,
option
or other charge or encumbrance (each a “Lien”, and collectively, "Liens")
except for the security interest created by this Agreement.
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(c)
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The
Pledgor has made necessary inquiries of the Company and believes
that the
Company fully intends to fulfill and has the capability of fulfilling
Obligations to be performed by the Company in accordance with the
terms of
the Transaction Documents.
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(d)
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The
Pledgor is not acting, and has not agreed to act, in any plan to
sell or
dispose of the Pledged Shares in a manner intended to circumvent
the
registration requirements of the Securities Act of 1933, as amended,
or
any applicable state law.
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(e)
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The
Pledgor is not, and has not at any time during the four months prior
to
the date of this Agreement been an “affiliate” (as such term is defined in
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder) of the Company.
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(f)
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This
Agreement constitutes a legal, valid and binding obligation of such
Pledgor enforceable in accordance with its terms (except as the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, and similar laws, now or
hereafter
in effect).
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(g)
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The
pledge of the Pledged Collateral pursuant to this Agreement creates
a
valid and perfected first priority security interest in the Pledged
Collateral, securing payment and performance of the Obligations.
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(h)
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No
consent of any other person or entity and no authorization, approval,
or
other action by, and no notice to or filing with, any governmental
authority or regulatory body is required (i) for the pledge by the
Pledgor
of the Pledged Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by the Pledgor, (ii) for
the
perfection or maintenance of the security interest created hereby
(including the first priority nature of such security interest),
or (iii)
for the exercise by the Pledgee of the voting or other rights provided
for
in this Agreement or the remedies in respect of the Pledged Collateral
pursuant to this Agreement (except as may be required in connection
with
any disposition of any portion of the Pledged Collateral by laws
affecting
the offering and sale of securities generally).
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(i)
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There
are no conditions precedent to the effectiveness of this Agreement
that
have not been satisfied or waived.
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(j)
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The
mailing address of the Pledgor is set forth in Section 17 of this
Agreement and the Pledgor will not change its address except upon
not less
than thirty (30) days' prior written notice to the Pledgee.
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SECTION
5. Further
Assurances. The Pledgor agrees that at any time and from time
to time, at the expense of the Pledgor, the Pledgor shall promptly execute
and
deliver all further instruments and documents, and take all further action,
that
may be necessary or desirable, or that the Pledgee may reasonably request,
in
order to perfect and protect any security interest granted or purported to
be
granted hereby or to enable Pledgee to exercise and enforce its rights and
remedies hereunder with respect to any Pledged Collateral. The
Company and/or the Pledgor shall take all further action that may be necessary
or desirable, or that the Pledgee may reasonably request to assist in the
delivery to the Pledgee of any legal opinion(s) necessary for the Pledgee to
sell or otherwise dispose of the Pledged Collateral upon an Event of Default
(the “Legal Opinion Assistance”). In the event that the Pledgor
and/or the Company fail to provide the Legal Opinion Assistance, the Pledgee
shall have the right to seek legal remedy, including without limitation remedies
of specific performance and/or monetary damages, from the Pledgor and/or the
Company for the full amount of damages to the Pledgee resulting directly or
indirectly from such failure to provide the Legal Opinion Assistance, including
without limitation any damages to the Pledgee resulting from the inability
of
the Pledgee to sell, dispose of, or transfer the Pledged Collateral due to
the
failure of the Company and/or the Pledgor to provide the Legal Opinion
Assistance.
SECTION
6. Voting Rights; Dividends;
Etc.
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(a)
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So
long as: (i) no Event of Default shall have occurred and been declared
and
(ii) the balance of the Debenture shall not have been accelerated:
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(i)
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The
Pledgor shall be entitled to exercise or refrain from exercising
any and
all voting and other consensual rights pertaining to the Pledged
Collateral or any part thereof for any purpose not inconsistent with
the
terms of this Agreement;
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(ii)
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The
Pledgor shall be entitled to receive and retain any and all cash
dividends
and interest paid in respect of the Pledged Collateral; provided,
however,
that any and all:
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(A)
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dividends
and interest paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Pledged Collateral,
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(B)
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dividends
and other distributions paid or payable in cash in respect of any
Pledged
Collateral in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital
surplus
or paid-in-surplus, and
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(C)
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cash
paid, payable or otherwise distributed in respect of principal of,
or in
redemption of, or in exchange for, any Pledged Collateral, shall
be, and
shall be forthwith delivered to the Pledgee to hold as Pledged Collateral,
and shall, if received by the Pledgor, be segregated from the other
property or funds of the Pledgor, and be forthwith delivered to the
Pledgee as Pledged Collateral in the same form as so received (with
any
necessary endorsement or assignment).
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(b)
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After
the occurrence of any Event of Default if within twenty four hours
of
receiving written notice of such Event of Default (as hereinafter
defined)
from the Pledgee the Company has not paid all outstanding principal
and
accrued an unpaid interest and fees (including penalties) owed on
the
Debenture and any liquidated damages associated with such Event of
Default, until the Debenture shall have been satisfied by conversion
or
payment in full:
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(i)
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All
rights of the Pledgor to exercise or refrain from exercising the
voting
and other consensual rights which it would otherwise be entitled
to
exercise pursuant to Section 6(a)(i) and to receive the dividends
and
interest payments which it would otherwise be authorized to receive
and
retain pursuant to Section 6(a)(ii) shall cease, and all such rights
shall
thereupon become vested in the Pledgee holding the applicable Pledged
Collateral who shall thereupon have the sole right to exercise or
refrain
from exercising such voting and other consensual rights and to receive
and
hold as Pledged Collateral such dividends and interest payments.
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(ii)
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All
dividends and interest payments which are received by the Pledgor
contrary
to the provisions of paragraph (i) of this Section 6(b) shall be
segregated from other funds of the Pledgor and shall be forthwith
paid
over to the Pledgee as Pledged Collateral in the same form as so
received
(with any necessary endorsement).
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SECTION
7. Transfers and Other
Liens;
Additional Shares. The Pledgor agrees that it shall not (i)
sell, assign (by operation of law or otherwise) or otherwise dispose of, or
grant any option with respect to, any of the Pledged Collateral, or (ii) create
or permit to exist any Lien upon or with respect to any of the Pledged
Collateral, except for the security interest granted pursuant to this
Agreement.
SECTION
8. Pledgee Appointed
Attorney-in-Fact. The Pledgor hereby appoints the Pledgee as
the Pledgor's attorney-in-fact, with full authority in the place and stead
of
the Pledgor and in the name of the Pledgor or otherwise, from time to time
in
Pledgee's discretion to take any action and to execute any instrument which
Pledgee may deem necessary or desirable to accomplish the purposes of this
Agreement, including, without limitation, to receive, endorse and collect all
instruments made payable to the Pledgor representing any dividend, interest
payment or other distribution in respect of the Pledged Collateral or any part
thereof and to give full discharge for the same.
SECTION
9. Pledgee May
Perform. If the Pledgor fails to perform any agreement
contained herein, Pledgee may itself perform, or cause performance of, such
agreement, and the expenses of Pledgee incurred in connection therewith shall
be
payable by the Pledgor to Pledgee along with any other amounts due to be paid
by
the Pledgor to Pledgee hereunder.
SECTION
10. The Pledgee's
Duties. Except for the safe custody of any Pledged Collateral
in its possession and the accounting for moneys actually received by it
hereunder, Pledgee shall not have any duty as to any Pledged Collateral, as
to
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged Collateral, whether
or not such party has or is to have knowledge of such matters, or as to the
taking of any necessary steps to preserve rights against any parties or any
other rights pertaining to any Pledged Collateral. Pledgee shall be
deemed to have exercised reasonable care in the custody and preservation of
any
Pledged Collateral in its possession if such Pledged Collateral is accorded
treatment substantially equal to that which such party accords its own
property.
SECTION
11. Event of
Default. The occurrence of any of the following events, which
events occur prior to the date the Company pays or converts upon the request
of
the Pledgee all amounts due on the Debenture in connection with the Cash
Advance, including any liquidated damages that may become due, shall constitute
an event of default under this Agreement (each, an "Event of Default"):
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(a)
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the
Company’s breach of a material covenant under this Agreement or the
occurrence of an Event of Default under the Debenture, including
without
limitation the occurrence of a Common Stock Event, as described in
Section
1.2 of this Agreement;
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(b)
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if
any representation or warranty of the Pledgor set forth in this Agreement
shall be breached or shall be untrue or incorrect in any material
respect
or the Pledgor shall otherwise breach any term of this Agreement;
or
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(c)
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the
filing of any financing statement with regard to any of the Pledged
Collateral other than pursuant to this Agreement, or the attachment
of any
additional Lien to any portion of the Pledged Collateral in favor
of any
Person other than the Pledgee.
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SECTION
12. Cross-Default;
Cross-Collateralization. The Pledgor acknowledges and agrees
that any default under the terms of this Agreement shall constitute a default
by
the Company under the Debenture. The security interests, liens and
other rights and interests in and relative to any of the personal property
of
the Pledgor now or hereafter granted to the Pledgee by the Pledgor pursuant
to
any agreement, document or instrument, including, but not limited to, this
Agreement, the Purchase Agreement or the Debenture, shall serve as security
for
any and all of the Obligations, and, for the repayment thereof, Pledgee may
resort to any such collateral in such order and manner as Pledgee may
elect.
SECTION
13. Remedies upon Event
of
Default. After the occurrence of any Event of Default if
within twenty four hours of receiving written notice of such Event of Default
from the Pledgee the Company has not paid all outstanding principal and accrued
and unpaid interest and all other amounts owed on the Debenture to the extent
of
the Cash Advance:
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(a)
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Pledgee
may exercise in respect of the Pledged Collateral held by it, in
addition
to other rights and remedies provided for herein or otherwise available
to
the Pledgee (including, without limitation, the vesting in the Pledgee
pursuant to Section 6(b)(i) of the sole right to exercise voting
rights
pertaining to the Pledged Collateral, including, without limitation,
voting rights with respect to the sale of assets of the Company),
all the
rights and remedies of a secured party on default under the Uniform
Commercial Code in effect in the State of California at that time
(the
"UCC") (whether or not the UCC applies to the affected Collateral),
and
may also, without notice except as specified below, to the extent
required
to pay all amounts due on the Debenture associated with such Event
of
Default (provided however that such amounts shall not exceed the
Cash
Advance), including without limitation principal, accrued but unpaid
interest, liquidated damages, if any, that are due under the Debenture
and
fees, sell, in a commercially reasonable sale, the Pledged Collateral
or
any part thereof in one or more parcels at a public sale, provided
that
the Pledged Collateral is then trading on a Trading Market (as defined
in
the Purchase Agreement), or at a private sale, if the Pledged Collateral
is no longer trading on a Trading Market, for cash, on credit or
for
future delivery, and upon such other terms as the Pledgee may deem
commercially reasonable. The application of the proceeds realized
upon the
sale of the Pledged Collateral may, in the sole discretion of the
Pledgee,
be applied to all or any portion of the amounts due on the Debenture
associated with such Event of Default, in any order specified by
the
Pledgee, including without limitation the application of the proceeds
realized upon the sale of the Pledged Collateral first to the liquidated
damages, if any, owed in connection with the Debenture, and then
to all
other amounts due on the Debenture associated with such Event of
Default,
including without limitation principal, accrued and unpaid interest
thereon and any other fees due under the Debenture, provided however,
that
such proceeds may only be applied to the satisfaction of the Cash
Advance
that is then outstanding under the Debenture, if any. The Pledgor
agrees
that, to the extent notice of sale shall be required by law, at least
three (3) days' notice to the Pledgor of the time and place of any
public
sale or the time after which any private sale is to be made shall
constitute reasonable notification. Pledgee shall not be obligated
to make
any sale of Pledged Collateral regardless of notice of sale having
been
given. The Pledgee may adjourn any public or private sale from time
to
time without notice. The Pledgor acknowledges and agrees that the
Pledged
Collateral consisting of the Pledged Shares, and/or any other shares
of
common stock of the Company, is of a type customarily sold on a recognized
market, and accordingly that no notice of the sale thereof need be
given.
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(b)
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Any
cash held by Pledgee as Pledged Collateral and all cash proceeds
received
by Pledgee in respect of any sale of, collection from, or other
realization upon all or any part of the Pledged Collateral may, in
the
discretion of Pledgee, be held as collateral for, and/or then or
at any
time thereafter be applied (after payment of any amounts payable
pursuant
to Section 14) in whole or in part against all or any part of the
Obligations. Any surplus of such cash or cash proceeds held by Pledgee
and
remaining after payment in full of all the Obligations shall be paid
over
to the Pledgor or to whomsoever may be lawfully entitled to receive
such
surplus.
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SECTION
14. Fees. In
the event an action is brought by Pledgee to enforce this Agreement, Pledgee
shall be entitled to recover its reasonable attorneys’ fees and costs from
Pledgor for such action.
SECTION
15. Continuing Security
Interest; Termination. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall remain in
full
force and effect until the indefeasible payment in full of the
Obligations. Upon the indefeasible payment in full of the
Obligations, the security interest granted hereby shall terminate and all rights
to the Pledged Collateral shall revert to the Pledgor and all certificates
representing the Pledged Collateral shall be re-issued in the name of the
Pledgor, the Pledgor’s successors or assigns to the extent such certificates are
not already in such names. Upon any such termination, the Pledgee
shall immediately but no later than three Business Days after such termination,
at the Pledgor's expense, return to the Pledgor such of the Pledged Collateral
as shall not have been sold or otherwise applied pursuant to the terms hereof
and execute and deliver to the Pledgor such documents as the Pledgor shall
reasonably request to evidence such termination. Notwithstanding the
foregoing, within ten days of the Cash Advance being reduced by an amount equal
to 25% of the original value of the Cash Advance, either due to repayment by
the
Company or conversion of such portion of the Cash Advance into the Company’s
Common Stock at the request of the Pledgor under the terms of the Debenture,
the
Pledgee shall return to the Pledgor one Pledged Shares Certificate for each
25%
portion of the original value of the Cash Advance so repaid or converted.
SECTION
16. Governing Law;
Terms. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California, without regard to
principles of conflict of laws. The Pledgor agrees to submit itself
to the in personam jurisdiction of the state and federal courts situated within
San Diego County, California with regard to any controversy arising out of
or
relating to this Agreement. Unless otherwise defined herein or in the
Purchase Agreement, terms defined in Article 9 of the UCC are used herein as
therein defined.
SECTION
17. Notice. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been received when delivered personally (which shall include,
without limitation, via express overnight courier) or if mailed, three (3)
Business Days after having been mailed by registered or certified mail, return
receipt requested, postage prepaid, to the addresses of the parties as set
forth
in the Purchase Agreement, and if to the Pledgor, to the following
address:
Xxxxxx
Xxxxxx
000
Xxxxxxx Xxxx
Xxxxx
Xxxx, Xxxxx 00000
Facsimile:
______________________
or
if by
facsimile, (i) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number specified below prior to 5:30
p.m. (Pacific Time), or (ii) the date immediately following the date of
transmission, if such notice or communication is delivered via facsimile between
5:30 p.m. (Pacific Time) on any date and earlier than 11:59 p.m. (Pacific Time)
on any such date the date immediately following the date of transmission.
SECTION
18. Waivers.
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(a)
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Waivers. The
Pledgor waives any right to require the Pledgee to (i) proceed against
any
person, (ii) proceed against any other collateral under any other
agreement, (iii) pursue any other remedy, or (iv) make presentment,
demand, dishonor, notice of dishonor, acceleration and/or notice
of
non-payment.
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(b)
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Waiver
of
Defense. No course of dealing between the Pledgor and
the Pledgee, nor any failure to exercise nor any delay in exercising
on
the part of Pledgee, any right, power, or privilege under this Agreement
or under any of the other Transaction Documents shall operate as
a
waiver. No single or partial exercise of any right, power, or
privilege under this Agreement or under any of the other Transaction
Documents shall preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or
privilege.
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SECTION
19. Rights Are
Cumulative. All rights and remedies of the Pledgee with
respect to the Pledged Collateral, whether established by this Agreement, the
other Transaction Documents or by law, shall be cumulative and may be exercised
concurrently or in any order.
SECTION
20. Indemnity. The
Pledgor agrees:
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(a)
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to
indemnify and hold harmless the Pledgee and its respective, employees,
consultants, officers, directors, shareholder, partners, successors
and
assigns against and from all liabilities, losses, and costs (including,
without limitation, reasonable attorneys' fees) arising out of or
relating
to the taking or the failure to take action in respect of any transaction
effected under this Agreement or in connection with the lien provided
for
herein, including, without limitation, any and all excise, sales
or other
taxes which may be payable or determined to be payable with respect
to any
of the Pledged Collateral.
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(b)
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to
pay and reimburse the Pledgee upon demand for all reasonable costs
and
expenses (including, without limitation, reasonable attorneys' fees
and
expenses) that the Pledgee may incur in connection with (i) the custody,
use or preservation of, or the sale of, collection from or other
realization upon, any of the Pledged Collateral, including the reasonable
expenses of re-taking, holding, preparing for sale or lease, selling
or
otherwise disposing of or realizing on the Pledged Collateral, (ii)
the
exercise or enforcement of any rights or remedies granted hereunder,
under
the Debenture or otherwise available to it (whether at law, in equity
or
otherwise), or (iii) the failure by the Pledgor to perform or observe
any
of the provisions hereof.
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The
liabilities of the Pledgor under this Section 20 shall survive the termination
of this Agreement.
SECTION
21. Severability. The
provisions of this Agreement are severable. If any provision of this
Agreement is held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such
provision, or part thereof, in such jurisdiction, and shall not in any manner
affect such provision or part thereof in any other jurisdiction, or any other
provision of this Agreement in any jurisdiction.
SECTION
22. Counterparts. This
Agreement may be executed in several counterparts, each of which shall be
considered an original, but all of which together shall constitute one and
the
same instrument and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In
the event that any signature is delivered by facsimile transmission or by e-mail
delivery of a “.pdf” format data file, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature
is
executed) with the same force and effect as if such facsimile signature page
were an original
thereof.
SECTION
23. Amendments; Entire
Agreement. This Agreement is subject to modification only by a
writing signed by the parties. To the extent that any provision of
this Agreement conflicts with any provision of the Purchase Agreement or the
Debenture, the provision giving the Pledgee greater rights or remedies shall
govern, it being understood that the purpose of this Agreement is to add to,
and
not detract from, the rights granted to the Pledgee under the Purchase Agreement
and the Debenture. This Agreement, the Purchase Agreement, the
Debenture and the other Transaction Documents constitute the entire agreement
of
the parties with respect to the subject matter of this Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
SECTION
24.
Successors
and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors, legal
representatives, successors and assigns; provided, however, that the Pledgor
may
not, without the prior written consent of the Pledgee, assign or delegate any
rights, powers, duties or obligations hereunder, and any such purported
assignment or delegation without such consent shall be null and
void. Pledgee may assign or delegate any rights, powers, duties or
obligations hereunder without the consent of the Pledgor.
IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the date first above written.
|
PLEDGOR:
______________________
Xxxxxx
Xxxxxx
|
|
PLEDGEE:
Golden
Gate Investors, Inc.
By: ______________________
Name: Xxxxxx
X. Xxxx
Title: Vice
President and Portfolio Manager
|
ACKNOWLEDGED
AND AGREED:
xXxxXxxxxx.xxx
By:
Name:
Title:
SCHEDULE
1(a)
Pledged
Shares
3,000,000
shares of Common Stock of xXxxXxxxxx.xxx in the aggregate, certificated as
follows:
------------------------------------------------------------------------------
Pledgor Number
of
Shares Certificate
No.
Xxxxxx
Xxxxxx 3,000,000
