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Exhibit 10.25
STOCK PLEDGE AGREEMENT
This STOCK PLEDGE AGREEMENT (as may hereafter be amended, supplemented
or restated from time-to-time in accordance with the terms hereof, this
"Agreement"), dated as of March 16, 2001 is entered into by and between INTERACT
COMMERCE CORPORATION, a Delaware corporation ("Pledgor"), and FOOTHILL CAPITAL
CORPORATION, a California corporation ("Foothill"), in light of the following
facts:
R E C I T A L S
A. Pledgor and Foothill are contemporaneously herewith entering into
that certain Loan and Security Agreement, dated as of even date (as may
hereafter be amended, supplemented or restated from time-to-time in accordance
with the terms thereof, the "Loan Agreement");
B. Pledgor is the record owner of the following shares of stock
(collectively, the "Shares"): (a) 1,000 shares of Common Stock of Enact
Incorporated, a corporation organized under the laws of the State of Arizona,
(b) 1,000 shares of the Common Stock of Opis Support Express, Inc., a
corporation organized under the laws of the State of Arizona, (c) 100 shares of
Common Stock of SalesLogix International, Inc. a corporation organized under the
laws of the State of Arizona, (d) 100 ordinary shares of Interact Commerce
(Europe) Limited, a corporation organized under the laws of the United Kingdom,
(e) one quota of Interact GmbH, a corporation organized under the laws of
Germany, (f) 2 ordinary shares of Interact Commerce Singapore Private Limited, a
corporation organized under the laws of Singapore, and (g) 100 ordinary shares
of Interact Commerce Corp. Pty Limited, a corporation organized under the laws
of Australia (together with each of the other companies listed above, the
"Companies"); and
C. Pursuant to the terms of the Loan Agreement, Pledgor and Foothill
are entering into this Agreement as additional security for the Obligations (as
defined in the Loan Agreement).
A G R E E M E N T
NOW THEREFORE, in consideration of the mutual promises, covenants,
conditions, representations, and warranties hereinafter set forth and for other
good and valuable consideration, the parties hereto mutually agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1 DEFINITIONS. All initially capitalized terms used but not
defined in this Agreement shall have the meanings assigned to such terms in the
Loan Agreement. In addition, the following terms, as used in this Agreement,
have the following meanings:
"Bankruptcy Code" means Bankruptcy Reform Act of 1978
(11 U.S.C. Sections 101-1330), as amended or supplemented from time to time, and
any successor statute, and any and all rules issued or promulgated in connection
therewith.
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"Code" means the California Uniform Commercial Code,
as amended and supplemented from time to time, and any successor statute.
Collateral" means all of the following:
(i) All of the Shares, which shares
constitute 100% of the capital stock of the Companies, and all of the
hereafter-acquired shares of Common Stock or ordinary stock in which Pledgor has
an interest at any time while this Agreement is in effect (hereinafter, such
additional shares also included in the definition of "Shares");
(ii) All of Pledgor's presently existing and
hereafter arising stock subscription warrants, stock options, or other rights to
the Companies' capital stock and all rights represented thereby (the "Options");
and
(iii) The proceeds of each of the foregoing,
including any and all dividends, cash, stock, instruments, and other property
from time to time received, receivable, or otherwise distributed in respect of
or in exchange for the Shares or Options (the "Proceeds").
"Event of Default" has the meaning given to such term
in Section 10.
"Secured Obligations" means the Obligations (as
defined in the Loan Agreement) and the obligations of Pledgor hereunder.
"33 Act" means the Securities Act of 1933, as amended
and supplemented from time to time, and any successor statute, and any and all
rules promulgated in connection therewith.
1.2 CONSTRUCTION. Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, and the term "including" is not limiting. The
words "hereof," "herein," "hereby," "hereunder," and other similar terms refer
to this Agreement as a whole and not to any particular provision of this
Agreement. Any reference herein to any document includes any and all
alterations, amendments, extensions, modifications, renewals, or supplements
thereto or thereof, as applicable. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against Foothill or Pledgor,
whether under any rule of construction or otherwise. On the contrary, this
Agreement has been reviewed by Pledgor, Foothill, and their respective counsel,
and shall be construed and interpreted according to the ordinary meaning of the
words used so as to fairly accomplish the purposes and intentions of Foothill
and Pledgor.
2. PLEDGE. As security for the prompt and complete payment and
performance of the Secured Obligations, Pledgor hereby delivers, pledges, and
grants to Foothill a continuing security interest in all of Pledgor's now-owned
or hereafter-acquired right, title, and interest in and to the Collateral. All
certificates or instruments representing or evidencing the Collateral shall be
delivered promptly to and held by Foothill pursuant hereto and shall be in
suitable form for transfer or assignment in blank, all in form and substance
satisfactory to Foothill.
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3. FURTHER ASSURANCES. Pledgor agrees that it shall cooperate with
Foothill and shall execute and deliver, or cause to be executed and delivered,
to Foothill all stock powers, proxies, assignments, financing statements,
instruments, and other documents, and shall take all further action, at the
expense of Pledgor, from time to time requested by Foothill, in order to
maintain a continuing, first-priority, perfected security interest in the
Collateral in favor of Foothill, and to enable Foothill to exercise and enforce
its rights and remedies hereunder with respect to the Collateral, and Pledgor
agrees that it shall execute and deliver to Foothill at Foothill's request any
further applications, agreements, documents and instruments, and shall perform
any and all acts deemed necessary by Foothill to carry into effect the terms,
conditions, and provisions of this Agreement and the transactions connected
herewith. Should Pledgor fail to execute or deliver any such applications,
agreements, documents, financing statements and instruments, or to perform any
such acts, Pledgor acknowledges that Foothill may execute and deliver the same
and perform such acts in the name of Pledgor and on its behalf as its
attorney-in-fact in accordance with Section 13.
4. FOOTHILL'S DUTIES. Foothill shall not have any duties with respect
to the Collateral other than the duty to use reasonable care if the Collateral
is in its possession. In accordance with Section 9207 of the Code, Foothill
shall be deemed to have used reasonable care if it observes substantially the
same standard of care with respect to the custody or preservation of the
Collateral as it observes with respect to similar assets owned by Foothill.
Without limiting the generality of the foregoing, Foothill shall not be under
any obligation to take any steps to preserve rights in the Collateral against
any other parties, to sell the same if it threatens to decline in value, or to
exercise any rights represented thereby (including rights with respect to calls,
conversions, exchanges, maturities, or tenders); provided, however, that
Foothill may, at its option, do so, and any and all expenses incurred in
connection therewith shall be for the account of Pledgor.
5. VOTING RIGHTS; DIVIDENDS; ETC. During the term of this Agreement,
and as long as no Event of Default has occurred and is continuing:
5.1 Pledgor shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Shares or any part thereof;
provided, however, no vote shall be cast or any consent, waiver or ratification
given or any action taken which would violate or be inconsistent with the terms
of this Agreement, the Loan Agreement or any other instrument or agreement
referred to therein or herein.
5.2 Pledgor shall be entitled to receive and retain any and
all dividends and distributions paid in respect of the Shares; provided,
however, that except with respect to any merger or consolidation of any of the
Companies into Pledgor or any other Company, as may be permitted under the Loan
Agreement, any and all:
(a) dividends and distributions paid or payable other
than in cash in respect of, and any and all additional shares or instruments or
other property received, receivable, or otherwise distributed in respect of, or
in exchange for the Shares;
(b) dividends and distributions paid or payable in
cash in respect of any Shares in connection with a partial or total liquidation
or dissolution, merger,
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consolidation of the Company, or any exchange of stock, conveyance of assets, or
similar corporate reorganization; and
(c) cash paid with respect to, payable, or otherwise
distributed on redemption of, or in exchange for, any Shares, shall be forthwith
delivered to Foothill to hold as Collateral and shall, if received by Pledgor,
be received in trust for the benefit of Foothill, be segregated from the other
property or funds of Pledgor, and be forthwith delivered to Foothill as
Collateral in the same form as so received (with any necessary endorsement),
and, if deemed appropriate by Foothill, Pledgor shall take such actions,
including the actions described in Section 2, as Foothill may require.
6. REPRESENTATIONS, WARRANTIES, AND COVENANTS. Pledgor warrants,
represents, and covenants that:
6.1 Pledgor is a corporation duly organized, validly existing
and in good standing under the laws of Delaware.
6.2 The execution, delivery and performance of this Agreement
are within Pledgor's powers, are not in conflict with the terms of the
Certificate of Incorporation or By-Laws or other organizational agreement or
instrument of Pledgor, and will not result in a breach of or constitute a
default under any material contract, obligation, indenture or other instrument
to which Pledgor is a party or by which Pledgor is bound; and there is no
material law, rule or regulation, nor is there any judgment, decree or order of
any court or governmental authority binding on Pledgor which would be
contravened by the execution, delivery, performance or enforcement of this
Agreement.
6.3 Pledgor has taken all corporate action necessary to
authorize the execution and delivery of this Agreement, and the consummation of
the transactions contemplated hereby and thereby. Upon its execution and
delivery in accordance with the terms hereof, this Agreement will constitute
legal, valid and binding agreements and obligations of Pledgor, enforceable
against Pledgor in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, and similar laws and equitable principles
affecting the enforcement of creditors' rights generally.
6.4 Other than federal laws and state and securities laws and
rules, there are no restrictions upon the transfer of any of the Collateral to
or by Foothill; Pledgor is the sole beneficial owner of the Collateral, and
Pledgor has the right to pledge and grant a security interest in or otherwise
transfer such Collateral free of any encumbrances or rights of third parties,
except for Permitted Liens.
6.5 All of the Collateral shall remain free from all liens,
claims, encumbrances, and purchase-money or other security interests except for
Permitted Liens and as created hereby. Except as permitted under the Loan
Agreement, Pledgor shall not sell or otherwise dispose of any of the Collateral.
6.6 Intentionally Omitted.
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6.7 No authorization or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
grant by Pledgor of the security interest granted hereby or for the execution,
delivery, or performance of this Agreement by Pledgor.
6.8 The Shares described in Recital B constitute 100% of the
capital stock of the Companies, which shares are owned by Pledgor.
6.9 There are no presently existing Options.
6.10 The Shares have been duly and validly issued by the
Companies, and are fully paid and nonassessable.
6.11 Pledgor has made its own arrangements for keeping
informed of changes or potential changes affecting the Collateral (including,
but not limited to, rights to convert, rights to subscribe, payment of
dividends, reorganization or other exchanges, tender offers, and voting rights),
and Pledgor agrees that Foothill shall not have any responsibility or liability
for informing Pledgor of any such changes or potential changes or for taking any
action or omitting to take any action with respect thereto.
7. SHARE ADJUSTMENTS. In the event that during the term of this
Agreement, any reclassification, readjustment, or other change is declared or
made in the capital structure of the Company, or any Option is exercised, all
new substituted and additional shares, options, or other securities, issued or
issuable to Pledgor by reason of any such change or exercise shall be delivered
to and held by Foothill under the terms of this Agreement in the same manner as
the Collateral originally pledged hereunder.
8. OPTIONS. In the event that during the term of this Agreement Options
shall be issued or exercised in connection with the Collateral, such Options
acquired by Pledgor shall be immediately assigned by Pledgor to Foothill and all
new shares or other securities acquired by Pledgor upon exercise of such Options
shall also be immediately assigned to Foothill to be held under the terms of
this Agreement in the same manner as the Collateral originally pledged
hereunder.
9. CONSENT. Pledgor hereby consents that, from time to time, before or
after the occurrence or existence of any Event of Default, with or without
notice to or assent from Pledgor, any other security at any time held by or
available to Foothill for any of the Secured Obligations or any other security
at any time held by or available to Foothill of any other person, firm, or
corporation secondarily or otherwise liable for any of the Secured Obligations,
may be exchanged, surrendered, or released and any of the Secured Obligations
may be changed, altered, renewed, extended, continued, surrendered, compromised,
waived, or released, in whole or in part, as Foothill may see fit. Pledgor shall
remain bound under this Agreement notwithstanding any such exchange, surrender,
release, alteration, renewal, extension, continuance, compromise, waiver, or
inaction, or extension of further credit.
10. EVENT OF DEFAULT. The occurrence of an Event of Default under, and
as defined in, the Loan Agreement shall constitute an event of default ("Event
of Default") under this Agreement.
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11. REMEDIES UPON DEFAULT. Upon the occurrence and continuance of an
Event of Default, Foothill shall have, in addition to any other rights given by
law or in this Agreement, in the Loan Agreement, or in any other agreement
between Foothill and Pledgor, all of the rights and remedies with respect to the
Collateral of a secured party under the Code, and also shall have, without
limitation, the following rights, which Pledgor hereby agrees to be commercially
reasonable:
11.1 to transfer all or any part of the Collateral into
Foothill's name or the name of its nominee or nominees;
11.2 all rights of Pledgor to exercise the voting and other
consensual rights that it would otherwise be entitled to exercise pursuant to
Section 5.1 and to receive the dividends and distributions that it would
otherwise be authorized to receive and retain pursuant to Section 5.2 shall, at
Foothill's option, cease, and all such rights shall, at Foothill's option,
thereupon become vested in Foothill, and Foothill shall, at its option,
thereupon have the sole right to exercise such voting and other consensual
rights and to receive and hold as Collateral such dividends and interest
payments. Any payments received by Pledgor contrary to the provisions of this
Section shall be held in trust by Pledgor for the benefit of Foothill, shall be
segregated from other funds of Pledgor, and shall be promptly paid over to
Foothill, with any necessary endorsement;
11.3 to vote the Shares (whether or not transferred into the
name of the Foothill), and give all consents, waivers and ratifications in
respect of the Collateral and otherwise act with respect thereto as though it
were the outright owner thereof; PLEDGOR HEREBY IRREVOCABLY CONSTITUTES AND
APPOINTS FOOTHILL THE PROXY AND ATTORNEY-IN-FACT OF PLEDGOR, COUPLED WITH AN
INTEREST, WITH FULL POWER OF SUBSTITUTION TO DO SO; SUCH PROXY SHALL CONTINUE IN
FULL FORCE AND EFFECT AND TERMINATE UPON THE SOONER TO OCCUR OF: (a) THE
INDEFEASIBLE PAYMENT IN FULL OF THE SECURED OBLIGATIONS; AND (b) TEN YEARS FROM
THE DATE HEREOF;
11.4 at any time or from time to time, to sell, assign and
deliver, or grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of performance,
advertisement or notice of intention to sell or of the time or place of sale or
adjournment thereof or to redeem or otherwise (all of which are hereby waived by
Pledgor), for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or prices and
on such terms as the Foothill in its absolute discretion may determine;
provided, that at least five days notice of the time and place of any such sale
shall be given to Pledgor. Foothill shall not be obligated to make any such sale
of Collateral regardless of whether any such notice of sale has therefore been
given. Pledgor hereby waives any other requirement of notice, demand, or
advertisement for sale, to the extent permitted by law. Pledgor hereby waives
and releases to the fullest extent permitted by law any right or equity of
redemption with respect to the Collateral, whether before or after sale
hereunder, and all rights, if any, of marshalling the Collateral and any other
security for the Secured Obligations or otherwise. At any such sale, unless
prohibited by applicable law, Foothill may bid for and purchase all or any part
of the Collateral so sold free from any such right or equity of redemption.
Foothill shall not be liable for failure to collect or realize upon
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any or all of the Collateral or for any delay in so doing nor shall Foothill be
under any obligation to take any action whatsoever with regard thereto;
11.5 to buy the Collateral, in its own name, or in the name of
a designee or nominee. Foothill shall have the right to execute any document or
form, in its name or in the name of the Pledgor, that may be necessary or
desirable in connection with such sale of the Collateral;
11.6 to sell the Collateral by a private placement,
restricting bidders and prospective purchasers to those who will represent and
agree that they are purchasing for investment only and not for distribution. In
so doing, Foothill may solicit offers to buy the Collateral, or any part of it
for cash, from a limited number of investors deemed by Foothill, in its
reasonable credit judgment, to be responsible parties who might be interested in
purchasing the Collateral. If Foothill shall solicit such offers from not less
than four such investors, then the acceptance by Foothill of the highest offer
obtained therefor shall be deemed to be a commercial reasonable method of
disposition of such Collateral, even though the sales price established and/or
obtained may be substantially less than the price that would be obtained
pursuant to a public offering. Notwithstanding the foregoing, should Foothill
deter-mine that, prior to any public offering of any securities contained in the
Collateral, such securities should be registered under the `33 Act and/or
registered or qualified under any other federal or state law, and that such
registration and/or qualification is not practical, Pledgor agrees that it will
be commercially reasonable if a private sale is arranged so as to avoid a public
offering even if offers are solicited from fewer than four investors, and even
though the sales price established and/or obtained may be substantially less
than the price that would be obtained pursuant to a public offering.
12. INDEFEASIBLE PAYMENT. The Secured Obligations shall not be
considered indefeasibly paid for purposes of this Agreement unless and until all
payments to Foothill are no longer subject to any right on the part of any
Person, including Pledgor, Pledgor as a debtor in possession, or any trustee
(whether appointed under the Bankruptcy Code or otherwise) of Pledgor or any of
Pledgor's Assets, to invalidate or set aside such payments or to seek to recoup
the amount of such payments or any portion thereof, or to declare same to be
fraudulent or preferential. In the event that, for any reason, any portion of
such payments to Foothill is set aside or restored, whether voluntarily or
involuntarily, after the making thereof, then the obligation intended to be
satisfied thereby shall be revived and continued in full force and effect as if
said payment or payments had not been made.
13. FOOTHILL AS PLEDGOR'S ATTORNEY-IN FACT. Pledgor hereby irrevocably
appoints Foothill as its attorney-in-fact to arrange for the transfer, at any
time after the occurrence and during the continuance of an Event of Default, of
the Collateral on the books of the Company to the name of Foothill or to the
name of Foothill's nominee. Pledgor further authorizes Foothill to perform any
and all acts which Foothill deems necessary for the protection and preservation
of the Collateral or of the value of Foothill's security interest therein,
including but not limited to receiving income thereon as additional security
hereunder, all at Pledgor's expense, and Pledgor agrees to repay Foothill
promptly upon demand any amounts expended hereunder by Foothill, together with
interest thereon. Pledgor further grants to Foothill a power of attorney coupled
with an interest to execute all agreements, forms, applications, documents and
instruments and to take all actions and do all things as could be executed,
taken, or done by Pledgor in connection
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with the protection and preservation of the Collateral or this Agreement if
Pledgor does not timely do so. This power of attorney is irrevocable and coupled
with an interest, and authorizes Foothill to act for Pledgor in connection with
the matters described herein without notice to or demand upon Pledgor.
14. GENERAL PROVISIONS.
14.1 CUMULATIVE REMEDIES; NO PRIOR RECOURSE TO COLLATERAL. The
enumeration herein of Foothill's rights and remedies is not intended to be
exclusive, and such rights and remedies are in addition to and not by way of
limitation of any other rights or remedies that the Foothill may have under the
Loan Agreement, the Loan Documents, the Code, or other applicable law. Foothill
shall have the right, in its sole discretion, to determine which rights and
remedies are to be exercised and in which order. The exercise of one right or
remedy shall not preclude the exercise of any others, all of which shall be
cumulative.
14.2 NO IMPLIED WAIVERS. No act, failure, or delay by Foothill
shall constitute a waiver of any of its rights and remedies. No single or
partial waiver by Foothill of any provision of this Agreement or any other Loan
Document, or of a breach or default hereunder or thereunder, or of any right or
remedy which Foothill may have, shall operate as a waiver of any other
provision, breach, default, right, or remedy or of the same provision, breach,
default, right, or remedy on a future occasion. No waiver by Foothill shall
affect its rights to require strict performance of this Agreement.
14.3 NOTICES. All notices or demands by any party hereto to
the other party and relating to this Agreement shall be sent in accordance with
the terms of Section 12 of the Loan Agreement.
14.4 SUCCESSORS AND ASSIGNS. This Agreement shall bind the
successors and assigns of Pledgor, and shall inure to the benefit of the
successors and assigns of Foothill; provided, however, that Pledgor may not
assign this Agreement nor delegate any of its duties hereunder without
Foothill's prior written consent and any prohibited assignment shall be
absolutely void. Foothill may assign this Agreement and its rights and duties
hereunder and no consent or approval by Pledgor is required in connection with
any such assignment. Foothill reserves the right to sell, assign, transfer,
negotiate, or grant participations in all or any part of, or any interest in
Foothill's rights and benefits hereunder.
14.5 SECTION HEADINGS. Headings and numbers have been set
forth herein for convenience only. Unless the contrary is compelled by the
context, everything contained in each section applies equally to this entire
Agreement.
14.6 AMENDMENTS IN WRITING. This Agreement cannot be changed
or terminated orally, but only by a writing signed by each party hereto. All
prior agreements, understandings, representations, warranties, and negotiations,
if any, are merged into this Agreement.
14.7 COUNTERPARTS; TELEFACSIMILE EXECUTION. This Agreement may
be executed in any number of counterparts and by different parties on separate
counterparts, each of which, when executed and delivered, shall be deemed to be
an original, and all of which, when
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taken together, shall constitute but one and the same Agreement. Delivery of an
executed counterpart of this Agreement by telefacsimile shall be equally as
effective as delivery of a manually executed counterpart of this Agreement. Any
party delivering an executed counterpart of this Agreement by telefacsimile also
shall deliver a manually executed counter-part of this Agreement but the failure
to deliver a manually executed counterpart shall not affect the validity,
enforce-ability, and binding effect of this Agreement.
14.8 TERMINATION BY FOOTHILL. After termination of the Loan
Agreement and when Foothill has received payment and performance, in full, of
the Secured Obligations, Foothill shall execute and deliver to Pledgor a
termination of all of the security interests granted by Pledgor hereunder and,
to the extent they have been delivered to Foothill and not disposed of in
accordance with this Agreement, certificates evidencing the Shares.
14.9 GOVERNING LAW; SEVERABILITY OF PROVISIONS. This Agreement
shall be deemed to have been made in the State of California and the validity,
enforceability, construction, interpretation and enforcement of this Agreement
and the rights of the parties hereto shall be determined under, governed by and
construed in accordance with the laws of the State of California without regard
to the principles of conflicts of law; provided, however, the respective rights
of the parties hereto in the Collateral, including voting the Shares, transfer
of the Shares and proxy rights, shall be governed by the corporate laws of the
State of California to the extent such law is applicable to such rights. If any
provision of this Agreement or its exhibits shall be determined to be invalid,
void or illegal, such provision shall be construed and amended in a manner which
would permit its enforcement, but in no event shall such provision affect,
impair or invalidate any other provision hereof.
14.10 JURISDICTION AND VENUE; WAIVER OF JURY TRIAL. THE
PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH
THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE OR FEDERAL COURT
LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA. THE PARTIES HERETO
HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION,
CAUSE OF ACTION OR PROCEEDING ARISING UNDER OR WITH RESPECT TO OR IN ANY WAY
RELATED TO THIS AGREEMENT. THE PARTIES HERETO MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION OF THE AGREEMENT WITH ANY
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COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY HERETO TO THE
WAIVER OF ITS RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above.
INTERACT COMMERCE CORPORATION,
a Delaware, corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President of Finance
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FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Senior Vice President
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