EXHIBIT 4.5
STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement (this "Agreement"), dated as of April 18,
2005, between Multi-Channel Holdings, Inc. (the "Pledgee") and Island Pacific,
Inc., a Delaware corporation (the "Company" or the "Pledgor", as applicable).
BACKGROUND
The Company has entered into a Note Purchase Agreement, dated as of the
date hereof (as amended, modified, restated or supplemented from time to time,
the "Note 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 Note Purchase Agreement, the Pledgor
has agreed to pledge and grant a security interest in the Pledged Collateral
described herein to the Pledgee on the terms and conditions set forth herein and
to deliver the certificates for the Pledged Collateral if and when the now
existing security interest and pledge in favor of Laurus (as such term is
defined in the Note Purchase Agreement) on the Pledged Collateral is released.
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 Note 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 Note Purchase
Agreement and the Related Agreements referred to in the Note Purchase Agreement
(the Note 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 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 Pledged Collateral
therefor or of the existence or extent of such Pledged 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 and grants a security
interest to Pledgee in all of the following (the "Pledged 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
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 Pledged 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 PLEDGED COLLATERAL. Within two (2) Business Days
following payment in full of the Laurus Indebtedness and re-delivery of the
shares representing the Pledged Collateral by Laurus, 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 the Issuer upon
demand by the Pledgee after payment in full of the Laurus Indebtedness to
deliver any certificates, instruments or other distributions issued in
connection with the Pledged 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 THE PLEDGOR. The Pledgor jointly
and severally represents and warrants to the Pledgee as of the date hereof that
except as set forth in the Disclosure Schedule attached to and made part of the
Note Purchase Agreement, which Disclosure Schedule is incorporated hereby by
reference:
(a) the execution, delivery and performance by the Pledgor of this
Agreement and the pledge of the Pledged 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;
2
(b) this Agreement constitutes the legal, valid, and binding
obligation of the Pledgor enforceable against the Pledgor in accordance with its
terms, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting enforcement of
creditors' rights and general principles of equity that restrict the
availability of equitable or legal remedies;
(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;
(e) no consent or approval of any Person (other than approval by
Laurus of the terms of the Subordination Agreement) is or will be necessary for
(i) the execution, delivery and performance of this Agreement, (ii) the exercise
by the Pledgee of the rights with respect to the Pledged Collateral as set forth
herein (iii) the pledge and assignment of, and the grant of a security interest
in, the Pledged Collateral hereunder, except in the case of each of clauses (i),
(ii) and (iii), such as could not, individually or in the aggregate, have or
result in a Material Adverse Effect on the Pledgee's practical ability to
realize upon the Pledged Collateral granted to it;
(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
Pledged Collateral;
(g) the Pledgor has the requisite power and authority to enter into
this Agreement and to pledge and assign the Pledged Collateral to the Pledgee in
accordance with the terms of this Agreement.
(h) the Pledgor owns each item of the Pledged Collateral and,
except for the pledge and security interest granted to Pledgee hereunder and the
existing pledge and security interest in favor of Laurus, the Pledged 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 Pledged Collateral and the
grant of a security interest under this Agreement vest in the Pledgee all rights
of the Pledgor in the Pledged Collateral as contemplated by this Agreement.
3
(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 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) No Pledgor will sell, assign, transfer, convey, or otherwise
dispose of its rights in or to the Pledged Collateral or any interest therein;
nor will the Pledgor create, incur or permit to exist any Lien with respect to
any of the Pledged Collateral or the proceeds thereof other than those Lien
already existing or that Lien created hereby.
(b) The Pledgor will, at its expense, defend Pledgee's right, title
and security interest in and to the Pledged Collateral against the claims of any
other party other than Laurus.
(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, after
repayment of the Laurus Indebtedness and delivery of the shares representing the
Pledged Collateral, irrevocable proxies in respect of the Pledged 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 Pledged Collateral then registered in the Pledgor's name.
(d) 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 Pledged 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, after repayment
of the Laurus Indebtedness, the Pledgee shall (i) be entitled to vote the
Pledged Collateral, (ii) be entitled to give consents, waivers and ratifications
in respect of the Pledged 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
Pledged Collateral. Subject to the prior rights of Laurus, 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 Pledged 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 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 of an Event of Default, after
repayment of the Laurus Indebtedness, all dividends and all other distributions
in respect of any of the Pledged Collateral, shall be delivered to the Pledgee
to hold as Pledged 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 any other Pledgor, and be forthwith delivered to the Pledgee as
Pledged Collateral in the same form as so received (with any necessary
endorsement).
4
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,
without limitation, this Agreement, and such default (other than a default under
Section 3 of this Agreement, as to which no cure period will be allowed) shall
not be cured for a period of fifteen (15) business days after the occurrence
thereof; provided that, if such breach is of a nature that it can not be cured
within fifteen (15) days and Pledgor, with written notice to and the consent of
the Pledgee, has taken reasonable steps to cure such default within fifteen (15)
days, the Pledgor will have a commercially reasonable amount of time to cure
such breach before such breach shall be deemed an Event of Default;
(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) Other than an action by Laurus, any portion of the Pledged
Collateral is subjected to levy of execution, attachment, distraint or other
judicial process; or any portion of the Pledged Collateral is the subject of a
claim (other than by the Pledgee) of a Lien or other right or interest in or to
the Pledged Collateral and such levy or claim shall not be cured, disputed or
stayed within a period of fifteen (15) 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 after expiration of applicable cure
periods, subject to the prior rights of Laurus:
5
(a) Transfer any or all of the Pledged Collateral into its name, or
into the name of its nominee or nominees;
(b) Exercise all corporate rights with respect to the Pledged
Collateral including, without limitation, all rights of conversion, exchange,
subscription or any other rights, privileges or options pertaining to any shares
of the Pledged 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 Pledged 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 Pledged Collateral, and, in connection therewith, to deposit and deliver any
and all of the Pledged Collateral with any committee, depository, transfer
agent, registrar or other designated agent upon such terms and conditions as it
may determine and 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 Pledged 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.
All moneys received by the Pledgee hereunder whether upon sale of the
Pledged 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 Pledged 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 California 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 Pledged Collateral) a public sale of all or part
of the Pledged 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 Pledged 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 in a public sale. The Pledgor agrees that the Pledgee has no
obligation to delay sale of any Pledged Collateral for the period of time
necessary to permit the Issuer to register the Pledged Collateral for public
sale under the Securities Act.
6
10. PROCEEDS OF SALE. The proceeds of any collection, recovery,
receipt, appropriation, realization or sale of the Pledged Collateral by or on
behalf of the Pledgee 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 Pledged Collateral (including, without
limitation, the reasonable expenses of any sale or any other disposition of any
of the Pledged 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,
the 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. The Pledgor hereby waives any right to compel
any marshaling of any of the Pledged 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 the Pledgor, (b) the release or
substitution of any item of the Pledged 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 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 the Pledgor or to exercise any other power of sale,
option or any other right or remedy.
13. EXPENSES. The Pledged 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 Pledged Collateral or any
other Pledged 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.
7
14. THE PLEDGEE APPOINTED ATTORNEY-IN-FACT AND PERFORMANCE BY THE
PLEDGEE. Upon the occurrence of an Event of Default, which has not been cured,
the 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, but subject to the prior
rights of Laurus, to execute such instruments of assignment or transfer or
orders and to register, convey or otherwise transfer title to the Pledged
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 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 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.
8
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
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 Note 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 California applied
to contracts to be performed wholly within the State of California.
(g) THE PLEDGOR EXPRESSLY CONSENTS TO THE JURISDICTION AND VENUE OF
EACH COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE OF CALIFORNIA 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 CALIFORNIA, STATE OF CALIFORNIA. 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
CALIFORNIA OR THE SOUTHERN DISTRICT OF CALIFORNIA 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.
9
(h) 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]
10
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first written above.
ISLAND PACIFIC, INC.
By: /s/ X. Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: President
MULTI-CHANNEL HOLDINGS, INC.
By: /s/ Xxxxxxxx Xxxx
---------------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Director
11
SCHEDULE A TO THE STOCK PLEDGE AGREEMENT
PLEDGED STOCK
---------------------------- ---------------------- -------------- ----------------- ----------------- ---------------
STOCK
CLASS OF CERTIFICATE NUMBER OF
PLEDGOR ISSUER STOCK NUMBER PAR VALUE SHARES
---------------------------- ---------------------- -------------- ----------------- ----------------- ---------------
Island Pacific, Inc. Page Digital 1,000 1 $0.0001 1,000
Incorporated
---------------------------- ---------------------- -------------- ----------------- ----------------- ---------------
Island Pacific, Inc. IP Retail 1,000 1 $0.0001 1,000
Technologies
International, Inc.
---------------------------- ---------------------- -------------- ----------------- ----------------- ---------------
Island Pacific, Inc. Sabica Ventures, Inc. 125,000 12 No par value 125,000
---------------------------- ---------------------- -------------- ----------------- ----------------- ---------------
A-1
