NON-EMPLOYEE DIRECTOR
RESTRICTED STOCK AGREEMENT
FCG ENTERPRISES, INC.
THIS RESTRICTED STOCK AGREEMENT ("Agreement") is made as of the 22nd day
of August, 1997, by and between FCG ENTERPRISES, INC., a California
corporation (the "Company") and _________________ ("Participant"). This
Agreement shall be effective for the period commencing on the date of
execution; provided that certain provisions of this Agreement shall be
amended upon the effectiveness of the Company's S-1 Registration Statement as
described in Appendix A hereto.
WHEREAS, the Board of the Company previously approved and adopted the
Company's Non-Employee Director Restricted Stock Plan, as amended (the
"Plan") and the Board has approved a form of Restricted Stock Agreement
pursuant to the Plan; and
WHEREAS, the Board considers it desirable and in the Company's best
interest that Participant acquire a proprietary interest in the Company.
NOW, THEREFORE, in consideration of the foregoing recitals, the parties
hereto agree as follows:
1. (a) PURPOSE OF PLAN. The purpose of the Plan is to provide
incentives and rewards for Non-Employee Directors of the Company by making
them participants in the Company's success. Additionally, by virtue of the
mandatory nature of the Plan, Participant will have a direct stake in the
Company's performance.
(b) DEFINITIONS. Certain terms used herein shall have the
following meanings:
(i) "AGREEMENT" shall mean this Restricted Stock Agreement;
(ii) "APPROVED PARTICIPANT" shall mean a Non-Employee
Director of the Company who has signed and is bound by this form of
Restricted Stock Agreement, as may be amended from time to time, or an
officer of the Company who has entered into a restricted stock agreement
under the 1994 Restricted Stock Bonus Plan;
(iii) "APPROVED SHAREHOLDER" shall mean the ASOP, a
Transferee Entity and an Approved Participant;
(iv) "APPLICABLE YEAR" shall mean the calendar year in which
the Purchase Event occurs;
(v) "ASOP" shall mean the Company's Associate 401(k) and
Stock Ownership Plan (effective December 1, 1995), as may be amended from
time to time;
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(vi) "BORROWING RATE" shall mean the average interest rate
the Company pays to a commercial lending institution in a calendar quarter.
In the event the Company has no borrowings for a particular quarter, then the
rate shall be the prime rate on the first day of the quarter, as announced in
the Wall Street Journal or if the Wall Street Journal discontinues such
announcements, then the reference lending rate as announced by Bank of
America;
(vii) "BOARD" shall mean the Board of Directors of the
Company;
(viii) "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
(ix) "COMPANY" shall mean FCG Enterprises, Inc., a
California corporation, or its successor in interest;
(x) "ELECTION TO SELL" shall mean a written notice given to
the Company by Participant, whereby Participant elects to commence selling
shares of Stock in accordance with and subject to the provisions of Section 7;
(xi) "NON-EMPLOYEE DIRECTORS" shall mean a member of the
Board who is not an employee of the Company;
(xii) "FINAL PRINCIPAL AMOUNT" shall mean the principal
amount of any promissory note given in connection with a purchase of Stock,
based upon the Final Purchase Price;
(xiii) "FINAL PURCHASE PRICE" shall mean the purchase price
for Stock as determined by the Valuation Report for the Applicable Year;
(xiv) "GROWTH FACTOR" shall have the same meaning as
"Borrowing Rate," compounded on a quarterly basis;
(xv) "MARKET VALUE" shall mean
(1) Before the effectiveness of the Company's S-1
Registration Statement, the per share value of the Stock determined as of the
end of each calendar year (or other period selected by the Board) by a market
valuation specialist selected by the Board, and
(2) After the effectiveness of the Company's S-1
Registration Statement, the closing sales price for the Stock (or the closing
bid, if no sales were reported) as quoted on the specific Public Trading
Market on which the Stock is traded (or the Public Trading Market with the
highest trading volume in the Stock if the Stock is traded on more than one
exchange or market) on the relevant date, as reported in The Wall Street
Journal or such other source as the Board deems reliable;
(xvi) "MINIMUM SHAREHOLDINGS" shall be as defined in Section 2.
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(xvii) "PARTICIPANT" shall mean the individual Non-Employee
Director of Company executing this Agreement;
(xviii) "PLAN" shall mean the Non-Employee Director Restricted
Stock Plan, as amended;
(xix) "PRELIMINARY PURCHASE PRICE" shall mean the purchase
price for Stock as determined by the most recent Valuation Report as opposed
to the Valuation Report for the Applicable Year;
(xx) "PRELIMINARY PRINCIPAL AMOUNT" shall mean the initial
principal amount of any promissory note given in connection with a purchase
of Stock, based upon the Preliminary Purchase Price;
(xxi) "PUBLIC TRADING MARKET" shall mean that shares of
Stock are actively traded on an established stock exchange, including but not
limited to a national securities exchange, the Nasdaq National Market, and/or
The Nasdaq SmallCap Market;
(xxii) "PURCHASE EVENT" shall mean the event causing a
purchase or sale under this Agreement, Election to Sell and any other
required or permitted disposition of Stock under this Agreement;
(xxiii) "STOCK" shall mean the Company's Class A Common Stock,
no par value;
(xxiv) "TRANSFEREE ENTITY" shall be as defined in Section 12.
(xxv) "VALUATION REPORT" shall mean the report of the market
valuation specialist as to the Market Value of the Stock.
2. PARTICIPANT STOCK PURCHASE REQUIREMENTS.
Participant shall purchase shares of Stock from (i) the Company, (ii)
with the prior written consent of the Company, an Approved Shareholder, or
(iii) on a Public Trading Market at the time Participant is elected to be a
Non-Employee Director of the Company with a then Market Value equal to the
annual compensation payable for Participant's services as a Non-Employee
Director (the "Minimum Shareholdings").
3. DETERMINATION OF STOCK VALUE.
Prior to the effectiveness of the Company's S-1 Registration Statement,
the Market Value per share of the Stock will be determined annually, as of
the end of the calendar year, by a market valuation specialist selected by
the Board. It is expected that the Valuation Report will be available
approximately three months after the end of the calendar year. Each year the
value of the shares of Stock owned by Participant, as of the end of the
calendar year, will be determined by multiplying the number of shares of
Stock owned by Participant by the Market Value.
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4. TRANSFER RESTRICTIONS.
(a) Participant shall be permitted to transfer his or her shares
to a Transferee Entity, in accordance with the provisions of Section 12, and
as permitted by this Agreement, to the ASOP, an Approved Participant or on a
Public Trading Market. Shares of Stock transferred to the ASOP in accordance
with the terms of this Agreement will not thereafter be subject to the
provisions of this Agreement.
(b) Without the prior written consent of the Company (which may be
given or withheld in its sole discretion), at no time may any of the shares
of Stock owned by Participant or a Transferee Entity that comprise
Participant's Minimum Shareholdings, or any interest therein, be pledged or
encumbered.
(c) None of the shares of Stock of the Company, held as collateral
or required to meet the Minimum Shareholdings, regardless of when or how
obtained or the class thereof, may be transferred, sold, or assigned to any
person, or hypothecated, except as otherwise provided for in this Section 4
and in Section 12.
(d) Any transfer, sale, assignment, hypothecation, encumbrance, or
alienation of any of the shares of Stock of the Company other than expressly
permitted by, and according to the terms of, this Agreement is void and
transfers no right, title, or interest in or to those shares, or any of them,
to the purported transferee, buyer, assignee, pledgee, or encumbrance holder.
(e) Notwithstanding any other provision of this Agreement to the
contrary, Participant agrees that the Company (or a representative of the
underwriters) may, in connection with the first underwritten registration of
the offering of any securities of the Company under the Securities Act of
1933, as amended (the "Act"), require that Participant not sell or otherwise
transfer or dispose of any shares of Stock or other securities of the
Company, both those securities subject to this Agreement and otherwise,
during such period (not to exceed five hundred forty (540) days) following
the effective date of the registration statement of the Company filed under
the Act as may be requested by the Company or the representative of the
underwriters. Participant further agrees that the Company may impose
stop-transfer instructions with respect to securities subject to the
foregoing restrictions until the end of such period.
5. VESTING.
The shares of Stock purchased by Participant from the Company will be fully
vested at all times.
6. PRELIMINARY AND FINAL DETERMINATION OF PURCHASE PRICE.
(a) All purchases and sales of shares of Stock under this
Agreement where either the Company is required to purchase the shares at
Market Value or the ASOP decides to purchase shares at Market Value, unless
otherwise agreed in writing between the parties, shall be based upon the
Market Value (as determined by the Valuation Report for the Applicable Year).
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(b) The Preliminary Purchase Price and the Preliminary Principal
Amount of any promissory note ("Note") given as part or all of the purchase
price will initially be calculated based upon the Market Value as determined
by the most recent Valuation Report. At such time as the Valuation Report
for the Applicable Year is issued, the Company shall calculate the Final
Purchase Price, and the Final Principal Amount of the note, and the
Preliminary Purchase Price and Preliminary Principal Amount shall be adjusted
to their final values, based upon the Market Value as determined by the
Valuation Report for the Applicable Year (see Section 11(b)).
7. REQUIRED HOLDINGS AND SALE OF SHARES.
(a) Sales of shares of Stock, unless otherwise agreed in writing
between seller and purchaser, shall be at Market Value (see Sections 3 and
6). Provided that Participant at all times owns Stock with a Market Value in
excess of the amount equal to the annual compensation payable for
Participant's services as a Non-Employee Director, the Participant may sell
shares of Stock to an Approved Shareholder, subject to the written consent of
the Company. Such consent will not be unreasonably withheld and a response
will be promptly given. To obtain the written consent of the Company, the
Participant must first give an Election to Sell notice to the Company.
(b) Upon the death of Participant, or upon the termination of a
Participant's continuing relationship with the Company for any reason, the
estate of Participant, Participant, and/or all Transferee Entities with
respect to such Participant, as the case may be, shall sell, and the Company
shall purchase, all of the shares of Stock of the Company owned by
Participant, Participant's estate or Transferee Entity, respectively.
8. PROCEDURE FOR SALES AND PURCHASES OF STOCK INVOLVING THE COMPANY
AND/OR AN APPROVED SHAREHOLDER.
Any Approved Shareholder desiring to purchase shares of the
Company's Stock may notify the Secretary of the Company as to the number of
shares that the shareholder is interested in buying. Any Participant
desiring to sell shares under Section 7 shall notify the Secretary of the
Company of such Participant's desire or requirement to sell shares. The
Secretary of the Company shall keep a list of those Participants desiring, or
required to sell, and those Approved Shareholders wishing to buy, which list
shall be made available to the respective parties upon request. Subject to
approval of the Company, which approval will not be unreasonably withheld
(and a response will be promptly given), those Participants desiring or
required to sell and those Approved Shareholders desiring to purchase may
agree between themselves as to the terms of a purchase and sale. Any such
purchase shall be for cash at the time of sale and no installment purchase
program is permitted, unless otherwise determined by the Company in its sole
discretion. While no consent of the Company shall be required for the ASOP
to purchase shares, the consent of the ASOP Committee shall be required.
9. PAYMENT TERMS FOR THE PURCHASE PRICE OF STOCK.
(a) Upon the death of Participant, unless otherwise agreed in
writing between the Company and the seller, the purchase price for shares of
Stock to be purchased by the Company, shall be paid at the Closing (as
defined in Section 11), by way of a Note in the form of
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Exhibit A hereto, in the principal amount of the Preliminary Purchase Price,
which Note shall not bear interest. The Note shall be due and payable on the
earlier of (i) sixteen (16) months after the date of the Closing (see Section
11) or (ii) thirty (30) days after the date of issuance of the Valuation
Report for the Applicable Year (see Section 6). Upon receipt of any
insurance proceeds received by the Company with respect to the death of
Participant (the purpose of which is to redeem Participant's shares), and to
the extent of such proceeds, subject to compliance with the provisions of
Section 11, the Company shall pre-pay the Note to the extent of the proceeds
received.
(b) Upon sale of shares of Stock under Section 7 while Participant
is still a Non-Employee Director of the Company, and unless otherwise agreed
in writing between the Company and Participant, at the Closing the purchase
price for shares of Stock to be purchased by the Company, shall be paid
eighty percent (80%) (based upon the Preliminary Purchase Price (see Section
6)) in cash, and the balance by way of a non-negotiable unsecured Note (in
the form of Exhibit A attached hereto), which Note shall not bear interest.
The Note shall be due and payable on the earlier of (i) sixteen (16) months
after the date of the Closing or (ii) thirty (30) days after the date of
issuance of the Valuation Report for the Applicable Year.
(c) Upon termination of Participant's service as a Non-Employee
Director for any reason, at the Closing the Company will pay twenty percent
(20%) (based upon the Preliminary Purchase Price) in cash, and the balance by
way of a non-negotiable unsecured promissory note (in the form of Exhibit B
attached hereto), payable over a period of five (5) years from the date of
the Closing, in quarterly payments in accordance with the provisions of
Exhibit B. The Note shall bear interest commencing on January 1 of the
calendar year immediately following the Applicable Year, at the Borrowing
Rate in effect on that date.
10. LIMITATIONS ON PAYMENTS BY THE COMPANY. Notwithstanding any other
provision of this Agreement, if the Company is required to purchase shares of
Stock under Section 7(b) of this Agreement, in no event shall the Company be
obligated to pay in the aggregate, during any fiscal year, more than twenty
percent (20%) of its retained earnings for the immediately preceding fiscal
year, nor during any one month period more than one and two-thirds percent
(1-2/3%) of such retained earnings, with respect to any and all purchases of
its capital stock. In the event the payment or payments for such purchases
exceeds the foregoing limitations, then at the Company's election, the
payment to each shareholder or former shareholder whose shares are being
purchased shall be proportionately reduced and the time for payment
correspondingly increased; provided, however, that the following categories
of purchases of shares of Stock shall have the priority indicated at the time
each payment is to be made:
(a) First priority: Purchases on death to the extent of insurance
proceeds.
(b) Second priority: Purchases on death to the extent there are no
insurance proceeds.
(c) Third priority: All other purchases.
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Notwithstanding the foregoing, at no time shall the Company purchase any
shares of its capital stock if such purchase would violate state or federal
law.
11. CLOSING.
(a) With respect to any shares of Stock being purchased by the
Company pursuant to this Agreement, payment by the Company and delivery and
transfer of the shares of Stock to the Company (the "Closing") shall take
place within thirty (30) days after the occurrence of the Purchase Event. At
the Closing the following provisions shall be applicable to any and all
purchases of shares of Stock by the Company:
(i) At the Closing, the Company shall deliver the
applicable Note representing all or a portion of the Preliminary Purchase
Price, and any required down payment.
(ii) Participant or his or her estate, conservator,
guardian, or Transferee Entity, as the case may be, shall deliver to the
Company the share certificate or certificates for all of the shares being
purchased, duly endorsed for transfer.
(iii) The Company's duty to close any purchase, including
the duty to pay any portion of the Preliminary Purchase Price, and deliver
the Note, is expressly subject to full performance or satisfaction of all
terms and conditions that are required to be performed or satisfied by any
other person or entity other than the Company.
(b) Within thirty (30) days after the Valuation Report for the
Applicable Year is received and the calculations made in accordance with
Section 6(b), the Company shall give written notice to any affected Note
holder as to the Final Purchase Price and the Final Principal Amount of any
Note given in connection with the purchase of shares of Stock. The Note shall
then be paid in accordance with the adjusted terms. The Note may, but need
not, be replaced with a new Note incorporating the adjusted terms. If at the
time of the adjustment, the Company has previously paid any sums to the Note
holder based upon the Preliminary Purchase Price, and the Final Purchase
Price exceeds the Preliminary Purchase Price, then at the time of the
adjustment the Company shall pay the Note holder the difference between the
amount that was paid and the amount that would have been paid based upon the
Final Purchase Price. For example, if the Preliminary Purchase Price was
$100,000 and a $20,000 down payment was made, and the Final Purchase Price is
$120,000, so that the true down payment would have been $24,000, then the
Company shall pay the additional $4,000 to the Note holder at the time the
adjustment is made. If at the time of the adjustment, the Company has
previously paid any sums to the Note holder based upon the Preliminary
Purchase Price, and the Final Purchase Price is less than the Preliminary
Purchase Price, the Note holder shall pay the Company the amount of the
overpayment within thirty (30) days of demand therefor by the Company, or the
Company may offset such overpayment against future payments to Participant,
if any.
(c) Unless otherwise agreed in writing between the parties, the
Closing shall take place at 000 Xxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxxxxx 00000, or such other place designated by the Company at 10:00 A.M.
on a date mutually satisfactory to the parties within the aforesaid thirty
(30)-day period. If the parties are unable to agree upon a mutually
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satisfactory date within said thirty (30)-day period, then the Closing shall
occur on the thirtieth (30th) day following the date of the Purchase Event,
or if the thirtieth (30th) day is a Saturday, Sunday, or legal holiday, then
the Closing shall occur on the next business day.
(d) Notwithstanding any other provision of this Agreement, if a
Purchase Event results due to death or permanent disability of Participant,
the Closing Date shall be extended for such period of time as may be
reasonably required for the appointment of a personal representative of the
deceased or disabled shareholder, and for the obtaining of probate court
instructions, approvals, or confirmations required by law, or until such time
as full legal and equitable tax-free title to the shares of Stock can be
transferred to the Company. Participant shall be deemed to be permanently
disabled when a medical doctor, reasonably acceptable to the Company,
certifies in writing ("Physician's Certificate") that Participant is
permanently disabled and unable to carry on his or her normal duties as a
Non-Employee Director.
(e) Further, notwithstanding any other provision of this
Agreement, the Closing of the purchase shall be subject to any approvals as
may be required from federal and/or state regulatory authorities.
12. TRANSFERS TO A REVOCABLE LIVING TRUST, FAMILY LIMITED LIABILITY
COMPANY, FAMILY LIMITED PARTNERSHIP, PRIVATE FOUNDATION, OR SIMILAR ESTATE
PLANNING ENTITY OR CHARITABLE GIFT PLANNING ENTITY. Notwithstanding anything
in this Agreement to the contrary, Participant may make a gift of his or her
shares of Stock to: (i) an irrevocable living grantor trust established for
the benefit of the Participant or his or her family, (ii) a family limited
liability company established for the benefit of the Participant or his or
her family, (iii) a family limited partnership established for the benefit of
the Participant or his or her family, or (iv) a private foundation
established by Participant or with respect to which Participant is a
"disqualified person" within the meaning of Section 4946 of the Code, or
similar estate planning entity or charitable gift planning entity
("Transferee Entity"), subject to the satisfaction, as applicable, of all of
the following:
(a) The trustee, manager, general partner, president, or
comparable authorized person of the Transferee Entity shall, prior to
obtaining possession of shares of such Stock, sign a copy of this Agreement
or other document signifying that the entity and all persons having an
economic ownership interest thereunder are bound by the terms of this
Agreement, and shall make no further distribution, conveyance, or transfer
other than as herein provided.
(b) Concurrent with the transfer or gift, the trustee, manager,
general partner, president, or comparable authorized person of the Transferee
Entity shall execute an irrevocable proxy granting the transferor of the
Stock the right to vote the Stock transferred for the maximum period
permitted under the then existing California law; and which proxy, shall be
renewed for like periods so long as the Transferee Entity is a shareholder of
the Company, and so long as this Agreement is in force, in order to carry out
the purposes of this Agreement.
(c) With respect to transfers to a trust, Participant shall at all
times retain the right, during his or her lifetime, to re-acquire the shares
of Stock transferred to the trust, except to the extent that such
reacquisition would be a violation of federal or state law.
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(d) Upon the occurrence of a Purchase Event, the Transferee
Entity, if then the owner of shares of Stock, shall transfer and sell all of
the shares of Stock transferred to the Transferee Entity by Participant, upon
the same terms and conditions that would have applied had the Stock been
owned by Participant at the time of such Purchase Event.
(e) As a condition to the transfer to the Transferee Entity,
Participant may, at the Company's option, be required to provide a copy of
the governing documents for such Transferee Entity to the Company, and to
certify that the Transferee Entity satisfies all applicable legal and tax
requirements for such type of entity.
(f) Any transfer of shares of Stock to a Transferee Entity which
does not satisfy all the applicable requirements set forth in this Section
12, as determined in the sole discretion of the Company, may be declared by
the Company to be void, and the Company shall not be required to reflect the
attempted change of ownership in the books and records of the Company.
13. REPRESENTATIONS AND WARRANTIES OF PARTICIPANT. As an inducement to
the Company to issue and sell the shares of Stock to Participant, Participant
represents, warrants and covenants to Company, which shall be continuing
representations, warranties and covenants applicable at any time Participant
purchases shares of Stock:
(a) That any shares of Stock acquired by Participant will be
acquired for Participant's own account, for investment, and not with a view
to or for sale in connection with any distribution of such shares.
(b) (1) That Participant has a preexisting business relationship
with Company and/or one or more of its officers or directors; or
(2) By reason of Participant's business or financial
experience or the business experience of his professional advisors who are
unaffiliated with and who are not compensated by the Company or any affiliate
or selling agent of the Company, directly or indirectly, Participant has the
capacity to protect his own interests in connection with the acquisition of
such shares of Stock and to evaluate the risks and rewards of investing in
such shares of Stock.
(c) That Participant is an Non-Employee Director of the Company.
(d) That Participant has reviewed the Company's financial
statements and such other information as Participant deemed important and
that Participant has had the opportunity to and has asked questions of
representatives of the Company pertaining to such financial statements and
other information and has received satisfactory answers to such questions.
(e) That the offer and sale of the shares of Stock was not
accomplished by the publication of any advertising.
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14. LEGEND ON STOCK CERTIFICATES; ESCROW AND PLEDGE AGREEMENT.
(a) Participant acknowledges and agrees that certificates for
shares of Stock to be issued to Participant may bear some or all of the
following legends as determined by the Company in its sole discretion, and
such additional or modified legends as the Company shall determine are
appropriate to put potential transferees of one or more certificates
representing shares of Stock subject to this Agreement on notice of the terms
and conditions of this Agreement and applicable law affecting such shares.
"The sale, transfer, assignment or hypothecation of the shares
represented by this certificate are subject to substantial
restrictions as set forth in that certain Restricted Stock
Agreement and any amendments thereto ("Agreement") dated __________,
199_, between the Issuer of these shares and the owner of these
shares. All of the provisions of said Agreement are incorporated
herein by this reference."
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and have not been
qualified under the California Corporate Securities Law of 1968, as
amended, or the securities laws of any other state. Such shares may
not be sold, transferred, assigned or hypothecated in the absence of
such registration or qualification, or an exemption from such
registration and qualification, the availability of which shall be
established to the satisfaction of counsel for the Company."
(b) If requested by the Company, Participant agrees to deliver
three (3) stock assignments in the form of Exhibit C, duly endorsed (with
date and number of shares left blank), and if some or all of the total
purchase price is to be paid by promissory Note, an executed pledge agreement
in the form of Exhibit D (the "Pledge Agreement") under which all shares of
the Stock acquired by Note shall be pledged as collateral security for the
payment of the indebtedness represented by the Note; and including, if
requested by the Company, endorsed certificates representing the appropriate
number of shares of Stock.
15. ARBITRATION. The parties shall submit any dispute concerning the
interpretation of or the enforcement of rights and duties under this
Agreement to final and binding arbitration pursuant to the Commercial
Arbitration Rules of the American Arbitration Association, in Los Angeles,
California. At the request of any party, the arbitrators, attorneys, parties
to the arbitration, witnesses, experts, court reporters, or other persons
present at the arbitration shall agree in writing to maintain the strict
confidentiality of the arbitration proceedings. Arbitration shall be
conducted by a single, neutral arbitrator, or, at the election of any party,
three neutral arbitrators, appointed in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. The arbitrator(s)
shall be attorneys in practice for at least ten years, and experienced in the
matter(s) being arbitrated. In any such arbitration, California Code of
Civil Procedure Section 1283.05 (Right to Discovery; Procedure and
Enforcement) shall be applicable. The award of the arbitrator(s) shall be
enforceable according to the applicable provisions of the California Code of
Civil Procedure. The arbitrator(s) shall have the same powers as those of a
judge of the Superior Court of the State of California, and shall render a
decision as would a judge of a Superior Court of the State of California;
provided, however, the arbitrator(s) shall not
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have the authority or power to award punitive or exemplary damages, and
specifically shall have the authority to grant equitable and injunctive
relief. If proper notice of any hearing has been given, the arbitrator(s)
will have full power to proceed to take evidence or to perform any other acts
necessary to arbitrate the matter in the absence of any party who fails to
appear.
16. JURY TRIAL WAIVERS. TO THE FULLEST EXTENT PERMITTED BY LAW, AND AS
SEPARATELY BARGAINED-FOR CONSIDERATION, EACH PARTY HEREBY WAIVES ANY RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM OF ANY KIND
ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY HEREBY EXPRESSLY
ACKNOWLEDGES THE INCLUSION OF THIS JURY TRIAL WAIVER BY ITS OR HIS INITIALS
SET FORTH BELOW.
"Company" "Participant"
Initials Initials
---------------- ----------------
Initials Initials
17. PLAN INCORPORATED BY REFERENCE. This Agreement is subject to all
of the terms and conditions of the Plan, all of which are incorporated herein
by reference. Participant acknowledges having received and reviewed a copy
of the Plan.
18. REPORTS TO PARTICIPANTS. The Company shall provide Participant
with audited financial statements concerning the Company on an annual basis
as soon as reasonably practical after the close of a fiscal year and shall
also provide such other materials as shall be required by law to be provided
to shareholders of the Company.
19. BINDING UPON SUCCESSORS. Subject to the restrictions on transfer
set forth in this Agreement, the provisions of this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives, trustees,
successors and assigns.
20. CERTAIN ADJUSTMENTS. If from time to time during the term of this
Agreement there is any stock dividend, stock split or other change in the
Stock subject to this Agreement, then, in such event, any securities to which
Participant is entitled through ownership of Stock subject to this Agreement
will be immediately subject to this Agreement and be included in the word
"Stock" for all purposes of this Agreement with the same force and effect as
the shares of Stock then subject to this Agreement. As provided in the Plan,
if any change is made in the Stock subject to this Agreement (through merger,
consolidation, reorganization, recapitalization, reincorporation, stock
dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure or other transaction not involving the receipt of consideration by
the Company), this Agreement will be appropriately adjusted in the type(s)
and number of securities and price per share of Stock.
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21. GOVERNING LAW, INTERPRETATION AND VENUE. This Agreement shall be
interpreted and enforced in accordance with the internal laws of the State of
California. The provisions of this Agreement shall be interpreted in
accordance with their plain meaning. No provision of this Agreement shall be
interpreted against a party as a consequence of that party having drafted
said provision. It is the intent of the parties that all issues concerning
this Agreement be arbitrated in accordance with the provisions of Section 15.
Nevertheless, should any legal action or proceeding be brought arising out of
or related to this Agreement, the parties agree and irrevocably consent to
the exclusive jurisdiction of the courts of the State of California and the
federal courts located in the State of California, County of Los Angeles,
with respect to any such legal action or proceeding. Participant waives any
objection based on forum non conveniens or improper venue in connection with
any such action or proceeding.
22. SPECIFIC PERFORMANCE. Each party's obligation under this Agreement
is unique. If any party should default in its obligations under this
Agreement, the parties each acknowledge that it would be extremely
impracticable to measure the resulting damages; accordingly, without
prejudice to its rights to seek and recover monetary damages, the
non-defaulting party shall be entitled to xxx in equity for specific
performance of this Agreement, and the parties each hereby expressly waive
the defense that a remedy in damages would be adequate.
23. TERMINATION. This Agreement shall terminate upon the earliest of
the following events:
(a) The written agreement of the Company and Participant to
terminate this Agreement.
(b) The termination of the Plan; provided that any such
termination shall not affect shares of Stock which Participant has previously
purchased.
(c) The liquidation or dissolution of the Company.
24. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of
this Agreement shall be effective unless and until an instrument reflecting
the amendment or waiver has been executed by the party or parties charged
with such amendment or waiver.
25. CAPTIONS. The captions of sections in this Agreement are provided
for ease of reference only and shall not be used to interpret or modify the
provisions of this Agreement.
26. NOTICES. Any notices to be given hereunder shall be deemed given
upon personal delivery or three business days after mailing, if mailed by
certified mail, return receipt requested, postage prepaid. Notices to
Company shall be addressed to FCG Enterprises, Inc., 000 Xxxx Xxxxx
Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxxxxx 00000, Attention: Corporate
Secretary or to any subsequent address of the Company's headquarters which
Participant could be reasonably expected to be aware of. Notices to
Participant shall be addressed to Participant at his or her last known
address shown on the books and records of the Company. Either party may
change his or its address for notices by giving notice of change of address
in accordance herewith.
12
27. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed one and the same instrument.
28. TAX IMPLICATIONS. Participant understands, acknowledges and agrees
that (a) the purchase of shares of Stock has certain tax consequences; and
(b) prior to any purchase or transfer of shares of Stock, Participant will
obtain advice from his or her own tax advisor with respect to such
consequences.
29. ENTIRE AGREEMENT; SUPERSEDES PRIOR AGREEMENT. This Agreement
supersedes any prior Restricted Stock Agreement between the undersigned and
the Company. All shares of the Company's Stock owned by Participant (or a
Transferee Entity with respect to such Participant) at the time this
Agreement is signed, as well as all acquisitions of the Company's Stock
subsequent thereto, shall be subject to the provisions of this Agreement.
All prior promises, negotiations, representations or agreements concerning
the subject matter of this Agreement not expressly set forth in this
Agreement are of no force or effect. All references in any document or
instrument referring to the Restricted Stock Agreement shall be deemed to
include a reference to this Agreement. This Agreement shall cover all shares
of Stock or other securities of the Company owned by Participant as of the
date of execution of this Agreement, regardless of the manner in which
Participant acquired such shares of Stock or other securities of the Company,
excluding (unless otherwise specifically provided for in this Agreement):
(i) shares of Stock held by or for Participant's benefit in the ASOP, and
(ii) shares of Stock acquired upon exercise of a stock option granted by the
Company pursuant to an option agreement that expressly indicates that such
shares shall not be covered by the Agreement.
30. GENDER. As used herein, whenever the context so requires, the
masculine gender shall include the feminine and the neuter.
31. SEVERABILITY. Should any provision or portion of this Agreement be
held unenforceable or invalid for any reason, the remaining provisions and
portions of this Agreement shall be unaffected by such holding.
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
"PARTICIPANT" "COMPANY"
FCG ENTERPRISES, INC.
By:
------------------------------ ------------------------------
(Signature) (Authorized Officer)
Title:
------------------------------ ------------------------------
(Name Printed)
NOTE: Please initial as indicated in Section 16.
14
CONSENT OF SPOUSE
I, the undersigned, agree and certify that:
1. I am married to _________________________, who signed the foregoing
Restricted Stock Agreement ("Agreement"), and who has the right to become a
shareholder and/or is a shareholder of FCG Enterprises, Inc. (the "Company").
2. I have read and approve the provisions of said Agreement including
those relating to the purchase and sale of the shares of Stock of the Company
owned by a deceased, disabled, terminated or terminating shareholder. I
understand that the Agreement supersedes and replaces the Restricted Stock
Agreement, previously executed by my spouse.
3. I agree to be bound by all of the provisions of said Agreement,
including but not limited to the provisions regarding the purchase and sale
of shares of Stock, regardless of any interest I may have in said shares of
Stock or rights I may have to purchase or sell shares of Stock of the Company
owned by my spouse, be such interest community property or otherwise. In
consenting hereto, I have either been advised by an attorney of my own
choosing, or personally decided not to seek such advice.
4. In consideration of the execution of said Agreement by the parties
thereto, I agree that if my spouse, the Company, other shareholders or the
ASOP elect(s) to purchase any interest of mine in the said shares of Stock in
accordance with the provisions of said Agreement, I shall execute any and all
documents, and do all acts necessary, to effect such purchase and sale in
accordance with the provisions of the Agreement.
5. This Consent shall be interpreted and enforced under the laws of
the State of California. Capitalized terms used in this consent shall have
the same meaning set forth in the Agreement.
Dated: , 1997
----------------
-------------------------------------------
(Signature of Spouse)
-------------------------------------------
(Typed name of Spouse)
15
APPENDIX A
Upon the effectiveness of the Company's S-1 Registration Statement, the
following modifications to the Agreement shall automatically be effective:
1. Sections 6 through 11 shall be deleted, new Section 6 shall be
added to read as set forth below, and the section references in the Agreement
shall be renumbered accordingly.
2. Section 6 shall be added to read as follows:
6. Required Holdings and Sale of Vested Shares.
Sales of vested shares of Stock shall be completed upon the
following terms and conditions:
(a) Provided that Participant continues, after the time of a
sale of vested shares of Stock, to own sufficient shares of Stock to satisfy
his or her Minimum Shareholdings requirement Participant may sell vested
shares of Stock through an investment banking or brokerage firm designated by
the Company.
(b) Notwithstanding the foregoing, Participant may not sell
shares of Stock which have been pledged or are otherwise being held as
collateral for a loan from the Company and/or a loan to purchase such shares
of Stock. Such pledged or collateralized shares of Stock may only be
released from such security interest under the terms of that written
instrument setting forth the terms of such security interest.
16
EXHIBIT A
NON-NEGOTIABLE
PROMISSORY NOTE
$ Long Beach, California
------------------ , 1997
----------------
FOR VALUE RECEIVED, FCG ENTERPRISES, INC., a California corporation
("Maker"), promises to pay to ________________________________________________
("Payee"), at Long Beach, California, the sum of
___________________________________________________________ ($____________),
without interest. The principal amount of this note ("Note") shall be due and
payable on the earlier of (i) sixteen months after the date hereof or (ii)
thirty (30) days after the issuance of the Valuation Report, as referred to
in that certain Restricted Stock Agreement, by and between Maker and Payee,
dated ______________, 199__ ("Agreement"). The principal amount of this Note
is subject to adjustments in accordance with the provisions of Paragraph
13(b) of the Agreement. Capitalized terms not defined in this Note shall
have the same meaning ascribed to them in the Agreement. All payments shall
be made in legal tender of the United States.
Maker and Payee understand that certain adverse tax consequences may
result pursuant to Sections 483 and 7872 of the Internal Revenue Code of
1986, as amended.
The undersigned and every person who assumes or guarantees the
obligations of this Note waives presentment, demand, notice of demand,
protest, notice of protest, notice of dishonor and notice of non-payment.
Any dispute concerning this Note, including the enforcement or
interpretation of this Note, shall be subject to binding arbitration in
accordance with the provisions of Paragraph 15 of the Agreement. The
provisions of said Paragraph 15 are incorporated herein by reference. THE
PARTIES TO THIS NOTE HEREBY EXPRESSLY WAIVE THE RIGHT TO A JURY TRIAL.
In the event arbitration or any other proceeding is instituted to
enforce or interpret this Note, the undersigned agree to pay such reasonable
attorneys' fees, costs and expenses as may be incurred by the holder of this
note in connection with the collection of any sum or sums due hereunder or
the enforcement or interpretation of this Note.
The parties intend that binding arbitration apply to any dispute
concerning the interpretation or enforcement of this Note. Nevertheless, if
any legal action or suit is brought pertaining to this Note, it shall be
brought and maintained only in a court of competent jurisdiction within the
State of California, County of Los Angeles. Maker and Payee irrevocably
consent to the jurisdiction of the courts of the State of California or the
United States District Court, located within said county, and to venue in Los
Angeles County, California.
17
This Note is not negotiable and may not be sold, transferred or
conveyed, voluntarily or involuntarily.
This Note shall be interpreted and enforced in accordance with the laws
of the State of California.
"MAKER"
FCG ENTERPRISES, INC.
By:
--------------------------------
(Authorized Officer)
Title:
------------------------------
18
EXHIBIT B
NON-NEGOTIABLE
INSTALLMENT PROMISSORY NOTE
$ Long Beach, California
------------------ , 199
--------------- --
FOR VALUE RECEIVED, FCG ENTERPRISES, INC., a California corporation
("Maker"), promises to pay to ______________________________ ("Payee"), at
Long Beach, California, the sum of ____________________________________________
__________________________________________________ ($_____) with interest at
the rate of _______________ (____%) percent per annum simple interest,
commencing on January 1, 199__. This note ("Note") shall be payable in equal
quarterly installments of $_________________, principal and interest
included, commencing on July 1,199_, and continuing on October 1, January 1,
April 1 and July 1, of each year thereafter until this Note is paid in full.
Additionally, all accrued interest from January 1, 199__ through June 30,
199__, shall be due and payable as a separate and additional component of the
first installment due hereunder. Notwithstanding any provision hereof, in no
event shall the interest rate hereunder exceed the maximum rate permitted by
law.
1. REFERENCE TO AGREEMENT. This Note is made and given pursuant to
that certain Restricted Stock Agreement, by and between Maker and Payee,
dated ______________, 199__ ("Agreement"). The principal amount of this
Note, payments and payment schedule, are subject to adjustments in accordance
with the provisions of Paragraph 13(b) of the Agreement. Capitalized terms
not defined in this Note shall have the same meaning ascribed to them in the
Agreement.
2. ACCELERATION. In the event that any payment of principal or
interest is not made when due, all principal and interest hereunder shall
become immediately due and payable at the option of Payee. All payments shall
be made in legal tender of the United States.
3. WAIVERS. The undersigned and every person who assumes or guarantees
the obligations of this Note waives presentment, demand, notice of demand,
protest, notice of protest, notice of dishonor and notice of non-payment.
4. INTERPRETATION; LEGAL FEES. This Note shall be interpreted and
enforced in accordance with the laws of the State of California. In the
event arbitration or any other proceeding is instituted to enforce or
interpret this Note, the undersigned agree to pay such reasonable attorneys'
fees, costs and expenses as may be incurred by the holder of this Note in
connection with the collection of any sum or sums due hereunder or the
enforcement or interpretation of this Note.
5. ARBITRATION OF DISPUTES. Any dispute concerning this Note,
including the enforcement or interpretation of this Note, shall be subject to
binding arbitration in accordance with the provisions of Paragraph 15 of the
Agreement. The provisions of said Paragraph 15 are
19
incorporated herein by reference. THE PARTIES TO THIS NOTE HEREBY EXPRESSLY
WAIVE THE RIGHT TO A JURY TRIAL.
6. JURISDICTION AND VENUE. The parties intend that binding
arbitration apply to any dispute concerning the interpretation or enforcement
of this Note. Nevertheless, if any legal action or suit is brought pertaining
to this Note, it shall be brought and maintained only in a court of competent
jurisdiction within the State of California, County of Los Angeles. Maker and
Payee irrevocably consent to the jurisdiction of the courts of the State of
California or the United States District Court, located within said county,
and to venue in Los Angeles County, California.
"MAKER"
FCG ENTERPRISES, INC.
By:
-------------------------------
(Authorized Officer)
Title:
----------------------------
20
EXHIBIT C
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, _______________________ hereby sells, assigns and
transfers unto FCG ENTERPRISES, INC., a California corporation (the
"Company"), pursuant to the Stock Pledge Agreement under that certain
Non-Employee Director Restricted Stock Agreement, dated ____________, ____,
by and between the undersigned and the Company (the "Agreement"),
______________ (________) shares of Common Stock of the Company standing in
the undersigned's name on the books of the Company represented by Certificate
No(s). _____________ and does hereby irrevocably constitute and appoint the
Company's Secretary attorney to transfer said stock on the books of the
Company with full power of substitution in the premises. This Assignment may
be used only in accordance with and subject to the terms and conditions of
the Agreement and the Stock Pledge Agreement and only to the extent that such
shares remain subject to the Stock Pledge Agreement.
Dated: ____________________
_______________________________________
(Signature)
_______________________________________
(Print Name)
21
EXHIBIT D
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT ("Pledge Agreement") is made by
______________, an individual with a residence at ____________ ("Pledgor"),
in favor of FCG ENTERPRISES, INC., a California corporation with its
principal place of business at Long Beach, California ("Pledgee").
WHEREAS, Pledgor has concurrently herewith executed that certain
Promissory Note (the "Note") in favor of Pledgee in the amount of
______________($________) in payment of the purchase price of
___________________ (_____) shares of the Common Stock of Pledgee; and
WHEREAS, Pledgee is willing to accept the Note from Pledgor, but only
upon the condition, among others, that Pledgor shall have executed and
delivered to Pledgee this Pledge Agreement and the Collateral (as defined
below):
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound, Pledgor hereby agrees as
follows:
1. As security for the full, prompt and complete payment and
performance when due (whether by stated maturity, by acceleration or
otherwise) of all indebtedness of Pledgor to Pledgee created under the Note
(all such indebtedness being the "Liabilities"), together with, without
limitation, the prompt payment of all expenses, including, without
limitation, reasonable attorneys' fees and legal expenses, incidental to the
collection of the Liabilities and the enforcement or protection of Pledgee's
lien in and to the collateral pledged hereunder, Pledgor hereby pledges to
Pledgee, and grants to Pledgee, a first priority security interest in all of
the following (collectively, the "Pledged Collateral"):
(a) ____________________ (________) shares of Common Stock of
Pledgee represented by Certificates numbered ________________ (the "Pledged
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 the Pledged Shares;
(b) all voting trust certificates held by Pledgor evidencing the
right to vote any Pledged Shares subject to any voting trust; and
(c) all additional shares and voting trust certificates from time
to time acquired by Pledgor in any manner (which additional shares shall be
deemed to be part of the Pledged Shares), 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.
The term "indebtedness" is used herein in its most comprehensive sense
and includes any and all advances, debts, obligations and Liabilities
heretofore, now or hereafter made, incurred or created, whether voluntary or
involuntary and whether due or not due, absolute or contingent,
22.
liquidated or unliquidated, determined or undetermined, and whether recovery
upon such indebtedness may be or hereafter becomes unenforceable.
2. At any time, without notice, and at the expense of Pledgor, Pledgee
in its name or in the name of its nominee or of Pledgor may, but shall not be
obligated to: (1) collect by legal proceedings or otherwise all dividends
(except cash dividends other than liquidating dividends), interest, principal
payments and other sums now or hereafter payable upon or on account of said
Pledged Collateral; (2) enter into any extension, reorganization, deposit,
merger or consolidation agreement, or any agreement in any wise relating to
or affecting the Pledged Collateral, and in connection therewith may deposit
or surrender control of such Pledged Collateral thereunder, accept other
property in exchange for such Pledged Collateral and do and perform such acts
and things as it may deem proper, and any money or property received in
exchange for such Pledged Collateral shall be applied to the indebtedness or
thereafter held by it pursuant to the provisions hereof; (3) insure, process
and preserve the Pledged Collateral; (4) cause the Pledged Collateral to be
transferred to its name or to the name of its nominee; (5) exercise as to
such Pledged Collateral all the rights, powers and remedies of an owner,
except that so long as no default exists under the Note or hereunder Pledgor
shall retain all voting rights as to the Pledged Shares.
3. Pledgor agrees to pay prior to delinquency all taxes, charges,
liens and assessments against the Pledged Collateral, and upon the failure of
Pledgor to do so, Pledgee at its option may pay any of them and shall be the
sole judge of the legality or validity thereof and the amount necessary to
discharge the same.
4. At the option of Pledgee and without necessity of demand or notice,
all or any part of the indebtedness of Pledgor shall immediately become due
and payable irrespective of any agreed maturity, upon the happening of any of
the following events: (1) failure to keep or perform any of the terms or
provisions of this Pledge Agreement; (2) failure to pay any installment of
principal or interest on the Note when due; (3) the levy of any attachment,
execution or other process against the Pledged Collateral; or (4) the
insolvency, commission of an act of bankruptcy, general assignment for the
benefit of creditors, filing of any petition in bankruptcy or for relief
under the provisions of Title 11 of the United States Code of, by, or against
Pledgor.
5. In the event of the nonpayment of any indebtedness when due,
whether by acceleration or otherwise, or upon the happening of any of the
events specified in the last preceding paragraph, Pledgee may then, or at any
time thereafter, at its election, apply, set off, collect or sell in one or
more sales, or take such steps as may be necessary to liquidate and reduce to
cash in the hands of Pledgee in whole or in part, with or without any
previous demands or demand of performance or notice or advertisement, the
whole or any part of the Pledged Collateral in such order as Pledgee may
elect, and any such sale may be made either at public or private sale at its
place of business or elsewhere, or at any broker's board or securities
exchange, either for cash or upon credit or for future delivery; provided,
however, that if such disposition is at private sale, then the purchase price
of the Pledged Collateral shall be equal to the public market price then in
effect, or, if at the time of sale no public market for the Pledged
Collateral exists, then, in recognition of the fact that the sale of the
Pledged Collateral would have to be registered under the Securities Act of
1933 and that the expenses of such registration are commercially unreasonable
for the type and amount of collateral pledged hereunder, Pledgee and
23.
Pledgor hereby agree that such private sale shall be at a purchase price
mutually agreed to by Pledgee and Pledgor or, if the parties cannot agree
upon a purchase price, then at a purchase price established by a majority of
three independent appraisers knowledgeable of the value of such collateral,
one named by Pledgor within 10 days after written request by the Pledgee to
do so, one named by Pledgee within such 10 day period, and the third named by
the two appraisers so selected, with the appraisal to be rendered by such
body within 30 days of the appointment of the third appraiser. The cost of
such appraisal, including all appraiser's fees, shall be charged against the
proceeds of sale as an expense of such sale. Pledgee may be the purchaser of
any or all Pledged Collateral so sold and hold the same thereafter in its own
right free from any claim of Pledgor or right of redemption. Demands of
performance, notices of sale, advertisements and presence of property at sale
are hereby waived, and Pledgee is hereby authorized to sell hereunder any
evidence of debt pledged to it. Any sale hereunder may be conducted by any
officer or agent of Pledgee.
6. The proceeds of the sale of any of the Pledged Collateral and all
sums received or collected by Pledgee from or on account of such Pledged
Collateral shall be applied by Pledgee to the payment of expenses incurred or
paid by Pledgee in connection with any sale, transfer or delivery of the
Pledged Collateral, to the payment of any other costs, charges, attorneys'
fees or expenses mentioned herein, and to the payment of the indebtedness or
any part hereof, all in such order and manner as Pledgee in its discretion
may determine. Pledgee shall then pay any balance to Pledgor.
7. Upon the transfer of all or any part of the indebtedness Pledgee
may transfer all or any part of the Pledged Collateral and shall be fully
discharged thereafter from all liability and responsibility with respect to
such Pledged Collateral so transferred, and the transferee shall be vested
with all the rights and powers of Pledgee hereunder with respect to such
Pledged Collateral so transferred; but with respect to any Pledged Collateral
not so transferred Pledgee shall retain all rights and powers hereby given.
8. Until all indebtedness shall have been paid in full the power of
sale and all other rights, powers and remedies granted to Pledgee hereunder
shall continue to exist and may be exercised by Pledgee at any time and from
time to time irrespective of the fact that the indebtedness or any part
thereof may have become barred by any statute of limitations, or that the
personal liability of Pledgor may have ceased.
9. Pledgee agrees that so long as no default exists under the Note or
hereunder, the Pledged Shares shall, upon the request of Pledgor, be released
from pledge as the indebtedness is paid. Such releases shall be at the rate
of one share for each ___________________ ($______) of principal amount of
indebtedness paid. Release from pledge, however, shall not result in release
from the provisions of those certain Joint Escrow Instructions, if any, of
even date herewith among the parties to this Pledge Agreement and the Escrow
Agent named therein.
10. Pledgee may at any time deliver the Pledged Collateral or any part
thereof to Pledgor and the receipt of Pledgor shall be a complete and full
acquittance for the Pledged Collateral so delivered, and Pledgee shall
thereafter be discharged from any liability or responsibility therefor.
24.
11. The rights, powers and remedies given to Pledgee by this Pledge
Agreement shall be in addition to all rights, powers and remedies given to
Pledgee by virtue of any statute or rule of law. Any forbearance or failure
or delay by Pledgee in exercising any right, power or remedy hereunder shall
not be deemed to be a waiver of such right, power or remedy, and any single
or partial exercise of any right, power or remedy hereunder shall not
preclude the further exercise thereof; and every right, power and remedy of
Pledgee shall continue in full force and effect until such right, power or
remedy is specifically waived by an instrument in writing executed by Pledgee.
12. If any provision of this Pledge Agreement is held to be
unenforceable for any reason, it shall be adjusted, if possible, rather than
voided in order to achieve the intent of the parties to the extent possible.
In any event, all other provisions of this Pledge Agreement shall be deemed
valid and enforceable to the full extent possible.
13. This Pledge Agreement shall be governed by, and construed in
accordance with, the laws of the State of California as applied to contracts
made and performed entirely within the State of California by residents of such
State.
Dated: _________________
PLEDGOR:
_______________________________________
Printed Name: _________________________
25.
