Exhibit 4.03
AFFILIATION, INC.
FOUNDER STOCK PURCHASE AGREEMENT
THIS FOUNDER STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the
1/st/ day of February, 1999, by and between AFFILIATION, INC., a Delaware
corporation (the "Company"), and XXXX XXXX ("Purchaser").
WHEREAS, pursuant to Section 408 of the California General Corporation Law,
the Company desires to issue, and Purchaser desires to acquire, stock of the
Company as herein described, on the terms and conditions hereinafter set forth;
WHEREAS, the issuance of common stock hereby is in connection with a
compensatory benefit plan for the employees, directors, officers, advisers or
consultants of the Company and is intended to comply with the provisions of Rule
701 promulgated by the Securities and Exchange Commission under the Securities
Act of 1933, as amended (the "Act").
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1 PURCHASE AND SALE OF STOCK. Purchaser hereby agrees to purchase from
the Company, and the Company hereby agrees to sell to Purchaser, an aggregate of
one million three hundred eighteen thousand six hundred eighty-one (1,318,681)
shares of the Common Stock of the Company (the "Stock") at $0.07 per share, for
an aggregate purchase price of ninety thousand three hundred seven dollars and
sixty-seven cents ($92,307.67), payable by Purchaser's execution of a Promissory
Note in the form set forth in Exhibit A (the "Note"), and subject to a pledge in
the form set forth in Exhibit B. The closing hereunder, including payment for
and delivery of the Stock shall occur at the offices of the Company immediately
following the execution of this Agreement, or at such other time and place as
the parties may mutually agree.
2. REPURCHASE OPTION
(a) In the event Purchaser's relationship with the Company (or a parent
or subsidiary of the Company), whether as an employee, director or consultant,
terminates for any reason (including death or disability), or for no reason,
with or without cause, then the Company shall have an irrevocable option (the
"Repurchase Option"), for a period of ninety (90) days after said termination,
or such longer period as may be agreed to by the Company and the Purchaser, to
repurchase from Purchaser or Purchaser's personal representative, as the case
may be, at the original price per share indicated above paid by Purchaser for
such Stock ("Option Price"), up to but not exceeding the number of shares of
Stock that have not vested as of such termination date in accordance with the
provisions of Section 2(b) and 2(c) below as of such termination date.
(b) One hundred percent (100%) of the Stock shall initially be subject
to the Repurchase Option. Twenty seven thousand four hundred seventy three
(27,473) shares of the Stock shall vest and be released from the Repurchase
Option on a monthly basis measured from December 1, 1998, until all the Stock is
released from the Repurchase Option (provided in each
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case that Purchaser's relationship as an employee director or consultant of the
Company (or a parent or subsidiary of the Company) has not been terminated prior
to the date of such release).
(c) Notwithstanding the foregoing, in the event that Purchaser's
employment is terminated without Cause (as defined below) or if Purchaser
resigns for Good Reason (as defined below) then fifty percent (50%) of
Purchaser's shares still subject to the Repurchase Option shall vest immediately
and be released from the Company's Repurchase Option. For purposes of this
Section 2, "Cause" shall mean (A) criminal dishonesty, (B) deliberate and
continual refusal to perform employment duties on substantially a full-time
basis, (C) deliberate and continual refusal to act in accordance with any
specific lawful and reasonable instructions of a majority of the Board of
Directors of the Company, or (D) deliberate misconduct which could be materially
damaging to the Company without reasonable good faith belief by Purchaser that
such conduct was in the best interests of the Company. Physical or mental
disability shall not constitute "Cause." For purposes of this Section 2 "Good
Reason" shall mean any of the following actions taken without Cause by the
Company or a successor corporation or entity without your consent: (i) a
material reduction in Purchaser's duties or responsibilities as in effect
immediately prior to a Change in Control; (ii) a reduction in Purchaser's base
salary of greater than ten percent (10%); or (iii) Purchaser's relocation to a
location more than forty (40) miles from Purchaser's principal work location.
3. EXERCISE OF REPURCHASE OPTION. The Repurchase Option shall be exercised
by written notice signed by an officer of the Company or by any assignee or
assignees of the Company and delivered or mailed as provided in Section 16(a).
Such notice shall identify the number of shares of Stock to be purchased and
shall notify Purchaser of the time, place and date for settlement of such
purchase, which shall be scheduled by the Company within the term of the
Repurchase Option set forth in Section 2(a) above. The Company shall be entitled
to pay for any shares of Stock purchased pursuant to its Repurchase Option at
the Company's option in cash or by offset against any indebtedness owing to the
Company by Purchaser (including without limitation any Note given in payment for
the Stock), or by a combination of both. Upon delivery of such notice and
payment of the purchase price in any of the ways described above, the Company
shall become the legal and beneficial owner of the Stock being repurchased and
all rights and interest therein or related thereto, and the Company shall have
the right to transfer to its own name the Stock being repurchased by the
Company, without further action by Purchaser.
4. ADJUSTMENTS TO STOCK. If, from time to time, during the term of the
Purchase Option there is any change affecting the Company's outstanding Common
Stock as a class that is effected without the receipt of consideration by the
Company (through merger, consolidation, reorganization, reincorporation, stock
dividend, dividend in property other than cash, stock split, liquidating,
dividend, combination of shares, change in corporation structure or other
transaction not involving the receipt of consideration by the Company), then any
and all new, substituted or additional securities or other property to which
Purchaser is entitled by reason of Purchaser's ownership of Stock shall be
immediately subject to the Repurchase Option and be included in the word "Stock"
for all purposes of the Repurchase Option with the same force and effect as the
shares of the Stock presently subject to the Repurchase Option, but only to the
extent the Stock is, at the time, covered by such Repurchase Option. While the
total Option Price shall
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remain the same after each such event, the Option Price per share of Stock upon
exercise of the Repurchase Option shall be appropriately adjusted.
5. CORPORATE TRANSACTION. In the event of (a) a sale of substantially all
of the assets of the Company; (b) a merger or consolidation in which the Company
is not the surviving corporation (other than a merger or consolidation in which
shareholders immediately before the merger or consolidation have, immediately
after the merger or consolidation, greater stock voting power); (c) a reverse
merger in which the company is the surviving corporation but the shares of the
Company's common stock outstanding immediately preceding the merger are
converted by virtue of the merger into other property, whether in the form of
securities, cash or otherwise (other than a reverse merger in which stockholders
immediately before the merger have, immediately after the merger, greater stock
voting power); or (d) any transaction or series of related transactions in which
in excess of 50% of the Company's voting power is transferred ((a) through (d)
being collectively referred to herein as a "Corporate Transaction"), then the
Repurchase Option may be assigned by the Company to any successor of the Company
(or the successor's parent) in connection with such Corporate Transaction. To
the extent that the Repurchase Option remains in effect following such a
Corporate Transaction, it shall apply to the new capital stock or other property
received in exchange for the Stock in consummation of the Corporate Transaction,
but only to the extent the Stock is at the time covered by such right.
Appropriate adjustments shall be made to the price per share payable upon
exercise of the Repurchase Option to reflect the effect of the Corporate
Transaction upon the Company's capital structure; provided, however, that the
aggregate Option Price shall remain the same.
6. TERMINATION OF REPURCHASE OPTION. Sections 2, 3, 4 and 5 of this
Agreement shall terminate upon the exercise in full or expiration of the
Repurchase Option, whichever first occurs.
7. ESCROW OF UNVESTED STOCK. As security for Purchaser's faithful
performance of the terms of this Agreement and to insure the availability for
delivery of Purchaser's Stock upon exercise of the Repurchase Option herein
provided for, Purchaser agrees, at the closing hereunder, to deliver to and
deposit with the Secretary of the Company or the Secretary's designee ("Escrow
Agent"), as Escrow Agent in this transaction, three (3) stock assignments duly
endorsed (with date and number of shares blank) in the form attached hereto as
Exhibit C, together with a certificate or certificates evidencing all of the
Stock subject to the Repurchase Option; said documents are to be held by the
Escrow Agent and delivered by said Escrow Agent pursuant to the Joint Escrow
Instructions of the Company and Purchaser set forth in Exhibit D attached hereto
and incorporated by this reference, which instructions shall also be delivered
to the Escrow Agent at the closing hereunder.
8. RIGHTS OF PURCHASER. Subject to the provisions of Sections 7, 9, 12 and
14 herein, Purchaser shall exercise all rights and privileges of a stockholder
of the Company with respect to the Stock deposited in escrow. Purchaser shall be
deemed to be the holder for purposes of receiving any dividends that may be paid
with respect to such shares of Stock and for the purpose of exercising any
voting rights relating to such shares of Stock, even if some or all of such
shares of Stock have not yet vested and been released from the Repurchase
Option.
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9. LIMITATIONS ON TRANSFER. In addition to any other limitation on
transfer created by applicable securities laws, Purchaser shall not assign,
hypothecate, donate, encumber or otherwise dispose of any interest in the Stock
while the Stock is subject to the Repurchase Option. After any Stock has been
released from the Repurchase Option, Purchaser shall not assign, hypothecate,
donate, encumber or otherwise dispose of any interest in the Stock except in
compliance with the provisions herein and applicable securities laws.
Furthermore, the Stock shall be subject to any right of first refusal in favor
of the Company or its assignees that may be contained in the Company's Bylaws.
10. RESTRICTIVE LEGENDS. All certificates representing the Stock shall have
endorsed thereon legends in substantially the following forms (in addition to
any other legend which may be required by other agreements between the parties
hereto):
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN
OPTION SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED HOLDER,
OR SUCH HOLDER'S PREDECESSOR IN INTEREST, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICE OF THIS COMPANY. ANY TRANSFER OR ATTEMPTED TRANSFER OF ANY
SHARES SUBJECT TO SUCH OPTION IS VOID WITHOUT THE PRIOR EXPRESS WRITTEN CONSENT
OF THE COMPANY."
(b) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
(c) "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT
OF FIRST REFUSAL OPTION IN FAVOR OF THE COMPANY AND/OR ITS ASSIGNEE(S) AS
PROVIDED IN THE BYLAWS OF THE COMPANY."
(d) Any legend required by appropriate blue sky officials.
11. INVESTMENT REPRESENTATIONS. In connection with the purchase of the
Stock, Purchaser represents to the Company the following:
(a) Purchaser is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Stock. Purchaser is
purchasing the Stock for investment for Purchaser's own account only and not
with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Act.
(b) Purchaser understands that the Stock has not been registered under
the Act by reason of a specific exemption therefrom, which exemption depends
upon, among other things, the bona fide nature of Purchaser's investment intent
as expressed herein.
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(c) Purchaser further acknowledges and understands that the Stock must
be held indefinitely unless the Stock is subsequently registered under the Act
or an exemption from such registration is available. Purchaser further
acknowledges and understands that the Company is under no obligation to register
the Stock. Purchaser understands that the certificate evidencing the Stock will
be imprinted with a legend which prohibits the transfer of the Stock unless the
Stock is registered or such registration is not required in the opinion of
counsel for the Company.
(d) Purchaser is familiar with the provisions of Rules 144 and 701,
under the Act, as in effect from time to time, which, in substance, permit
limited public resale of "restricted securities" acquired, directly or
indirectly, from the issuer thereof (or from an affiliate of such issuer), in a
non-public offering subject to the satisfaction of certain conditions. Rule 701
provides that if the issuer qualifies under Rule 701 at the time of issuance of
the securities, such issuance will be exempt from registration under the Act. In
the event the Company becomes subject to the reporting requirements of Section
13 or 15(d) of the Securities Exchange Act of 1934, the securities exempt under
Rule 701 may be sold by Purchaser ninety (90) days thereafter, subject to the
satisfaction of certain of the conditions specified by Rule 144 and the market
standoff provision described in Section 12 below.
In the event that the sale of the Stock does not qualify under Rule 701 at
the time of purchase, then the Stock may be resold by Purchaser in certain
limited circumstances subject to the provisions of Rule 144, which requires,
among other things: (i) the availability of certain public information about the
Company and (ii) the resale occurring following the required holding period
under Rule 144 after the Purchaser has purchased, and made fall payment of
(within the meaning of Rule 144), the securities to be sold.
(e) Purchaser further understands that at the time Purchaser wishes to
sell the Stock there may be no public market upon which to make such a sale, and
that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144 or 701, and
that, in such event, Purchaser would be precluded from selling the Stock under
Rule 144 or 701 even if the minimum holding period requirement had been
satisfied.
(f) Purchaser further warrants and represents that Purchaser has either
(i) preexisting personal or business relationships, with the Company or any of
its officers, directors or controlling persons, or (ii) the capacity to protect
his own interests in connection with the purchase of the Stock by virtue of the
business or financial expertise of himself or of professional advisors to
Purchaser who are unaffiliated with and who are not compensated by the Company
or any of its affiliates, directly or indirectly.
12. MARKET STAND-OFF AGREEMENT. Purchaser shall not sell, dispose of,
transfer, make any short sale of, grant any option for the purchase of, or enter
into any hedging or similar transaction with the same economic effect as a sale,
any Common Stock or other securities of the Company held by Purchaser, including
the Stock (the "Restricted Securities"), for a period of time specified by the
underwriter(s) (not to exceed one hundred eighty (180) days) following the
effective date of a registration statement of the Company filed under the Act.
Purchaser agrees to execute and deliver such other agreements as may be
reasonably requested by
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the Company and/or the underwriter(s) which are consistent with the foregoing or
which are necessary to give further effect thereto. In order to enforce the
foregoing covenant, the Company may impose stop-transfer instructions with
respect to Purchaser's Restricted Securities until the end of such period.
13. SECTION 83(b) ELECTION. Purchaser understands that Section 83(a) of the
Code, taxes as ordinary income the difference between the amount paid for the
Stock and the fair market value of the Stock as of the date any restrictions on
the Stock lapse. In this context, "restriction" includes the right of the
Company to buy back the Stock pursuant to the Repurchase Option set forth in
Section 2a above. Purchaser understands that Purchaser may elect to be taxed at
the time the Stock is purchased, rather than when and as the Repurchase Option
expires, by filing an election under Section 83(b) (an "83(b) Election") of the
Code with the Internal Revenue Service within thirty (30) days from the date of
purchase. Even if the fair market value of the Stock at the time of the
execution of this Agreement equals the amount paid for the Stock, the 83(b)
Election must be made to avoid income under Section 83(a) in the future.
Purchaser understands that failure to file such an 83(b) Election in a timely
manner may result in adverse tax consequences for Purchaser. Purchaser further
understands that an additional copy of such 83(b) Election is required to be
filed with his or her federal income tax return for the calendar year in which
the date of this Agreement falls. Purchaser acknowledges that the foregoing is
only a summary of the effect of United States federal income taxation with
respect to purchase of the Stock hereunder, and does not purport to be complete.
Purchaser further acknowledges that the Company has directed Purchaser to seek
independent advice regarding the applicable provisions of the Code, the income
tax laws of any municipality, state or foreign country in which Purchaser may
reside, and the tax consequences of Purchaser's death. Purchaser assumes all
responsibility for filing an 83(b) Election and paying all taxes resulting from
such election or the lapse of the restrictions on the Stock.
14. REFUSAL To TRANSFER. The Company shall not be required (a) to transfer
on its books any shares of Stock of the Company which shall have been
transferred in violation of any of the provisions set forth in this Agreement or
(b) to treat as owner of such shares or to accord the right to vote as such
owner or to pay dividends to any transferee to whom such shares shall have been
so transferred.
15. NO EMPLOYMENT RIGHTS. This Agreement is not an employment contract and
nothing in this Agreement shall affect in any manner whatsoever the right or
power of the Company (or a parent or subsidiary of the Company) to terminate
Purchaser's employment for any reason at any time, with or without cause and
with or without notice.
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16. MISCELLANEOUS.
(a) Notices. Any notice required or permitted hereunder shall be given
in writing and shall be deemed effectively given upon personal delivery or sent
by telegram or fax or upon deposit in the United States Post Office, by
registered or certified mail with postage and fees prepaid, addressed to the
other party hereto at his address hereinafter shown below its signature or at
such other address as such party may designate by ten (10) days' advance written
notice to the other party hereto.
(b) Successors and Assigns. This Agreement shall inure to the benefit
of the successors and assigns of the Company and, subject to the restrictions on
transfer herein set forth, be binding upon Purchaser, Purchaser's successors,
and assign. The Repurchase Option of the Company hereunder shall be assignable
by the Company at any time or from time to time, in whole or in part.
(e) Attorneys' Fees; Specific Performance. Purchaser shall reimburse
the Company for all costs incurred by the Company in enforcing the performance
of, or protecting its rights under, any part of this Agreement, including
reasonable costs of investigation and attorneys' fees. It is the intention of
the parties that the Company, upon exercise of the Repurchase Option and payment
of the Option Price, pursuant to the terms of this Agreement, shall be entitled
to receive the Stock, in specie, in order to have such Stock available for
future issuance without dilution of the holdings of other
shareholders/stockholders. Furthermore, it is expressly agreed between the
parties that money damages are inadequate to compensate the Company for the
Stock and that the Company shall, upon proper exercise of the Repurchase
Option,. be entitled to specific enforcement of its rights to purchase and
receive said Stock.
(d) Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of California. The parties
agree that any action brought by either party to interpret or enforce any
provision of this Agreement shall be brought in, and each party agrees to, and
does hereby, submit to the jurisdiction and venue of, the appropriate state or
federal court for the district encompassing the Company's principal place of
business.
(e) Further Execution. The parties agree to take all such further
action(s) as may reasonably be necessary to carry out and consummate this
Agreement as soon as practicable, and to take whatever steps may be necessary to
obtain any governmental approval in connection with or otherwise qualify the
issuance of the securities that are the subject of this Agreement.
(f) Independent Counsel. Purchaser acknowledges that this Agreement has
been prepared on behalf of the Company by Xxxxxx Godward LLP, counsel to the
Company and that Xxxxxx Godward LLP does not represent, and is not acting on
behalf of, Purchaser. Purchaser has been provided with an opportunity to consult
with Purchaser's own counsel with respect to this Agreement.
(g) Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes and
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merges all prior agreements or understandings, whether written or oral. This
Agreement may not be amended, modified or revoked, in whole or in part, except
by an agreement in writing signed by each of the parties hereto.
(h) Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(i) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
AFFILIATION, INC.
By: /s/ Xxxx Xxxx
---------------------------
Title: President and CEO
------------------------
Address: 000 Xxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
PURCHASER:
By: /s/ Xxxx Xxxx
---------------------------
XXXX XXXX
Address: 000 Xxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
VESTING COMMENCEMENT
DATE: December 1, 1998
-------------------------
SIGNATURE PAGE
FOUNDER STOCK PURCHASE AGREEMENT
EXHIBIT A
PROMISSORY NOTE
$92,307.67 February 1, 1999
FOR VALUE RECEIVED, the undersigned hereby unconditionally promises to pay
to the order of AFFILIATION, INC., a Delaware corporation (the "Company"), at
000 Xxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, or at such other place as the
holder hereof may designate in writing, in lawful money of the United States of
America and in immediately available funds, the principal sum of ninety-two
thousand three hundred seven dollars and sixty-seven cents ($92,307.67) together
with interest accrued from the date hereof on the unpaid principal at the rate
of 4.64% per annum, or the maximum rate permissible by law (which under the laws
of the State of California shall be deemed to be the laws relating to
permissible rates of interest on commercial loans), whichever is less, as
follows:
Principal Repayment. The outstanding principal amount and any accrued
interest hereunder shall be due and payable in full on February 1, 2003.
Interest Payments. Interest shall be payable annually in arrears and
shall be calculated monthly beginning February 1, 1999 on the basis of a
360-day year for the actual number of days elapsed; provided, however, that
in the event that the undersigned's employment by or association with the
Company is terminated for any reason prior to payment in full of this Note,
this Note shall be accelerated and all remaining unpaid principal and
interest shall become due and payable within ninety (90) days after such
termination or such longer period as may be agreed to by the Company and
the undersigned.
This Note may be prepaid at any time without penalty. All money paid toward
the satisfaction of this Note shall be applied first to the payment of interest
as required hereunder and then to the retirement of the principal.
The full amount of this Note is secured by a pledge of shares of Common
Stock of the Company, and is subject to all of the terms and provisions of the
Founder Stock Purchase Agreement and the Pledge Agreement, each of even date
herewith between the undersigned and the Company.
The undersigned hereby represents and agrees that the amounts due under
this Note are not consumer debt, and are not incurred primarily for personal,
family or household purposes, but are for business and commercial purposes only.
The undersigned hereby waives presentment, protest and notice of protest,
demand for payment, notice of dishonor and all other notices or demands in
connection with the delivery, acceptance, performance, default or endorsement of
this Note.
The holder hereof shall be entitled to recover, and the undersigned agrees
to pay when incurred, all costs and expenses of collection of this Note,
including without limitation, reasonable attorneys' fees.
This Note shall be governed by, and construed, enforced and interpreted in
accordance with, the laws of the State of California, excluding conflict of laws
principles that would cause the application of laws of any other jurisdiction.
Signed: /s/ Xxxx Xxxx
--------------------
Xxxx Xxxx
FOUNDER STOCK PURCHASE AGREEMENT
EXHIBIT B
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT ("Pledge Agreement") is made by XXXX XXXX, an
individual with a residence at 000 Xxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000
("Pledgor"), in favor of AFFILIATION, INC., a Delaware corporation with its
principal place of business at 000 Xxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000
("Pledgee").
WHEREAS, Pledgor has concurrently herewith executed that certain Promissory
Note (the "Note") in favor of Pledgee in the amount of ninety-two thousand three
hundred seven dollars and sixty-seven cents ($92,307.67) in payment of the
purchase price of one million three hundred eighteen thousand six hundred
eighty-one (1,318,681) 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 fall, 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) One million three hundred eighteen thousand six hundred eighty-one
(1,318,681) shares of Common Stock of Pledgee represented by Certificates
numbered C-1 (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.
FOUNDER STOCK PURCHASE AGREEMENT
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, 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 way 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
FOUNDER STOCK PURCHASE AGREEMENT
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 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 night 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 ten cents ($0.07) 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.
FOUNDER STOCK PURCHASE AGREEMENT
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.
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 night, 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: February 1, 1999 PLEDGOR:
/s/ Xxxx Xxxx
--------------------------------
Xxxx Xxxx
FOUNDER STOCK PURCHASE AGREEMENT
EXHIBIT C
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, Xxxx Xxxx hereby sells, assigns and transfers unto
AFFILIATION, INC., a Delaware corporation (the "Company"), pursuant to the
Repurchase Option under that certain Founder Stock Purchase Agreement, dated
February 1, 1999, by and between the undersigned and the Company (the
"Agreement), one million three hundred eighteen thousand six hundred eighty-one
(1,318,681) shares of Common Stock of the Company standing in the undersigned's
name on the books of the Company represented by Certificate No C-1 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, in connection with the repurchase
of shares of Common Stock issued to the undersigned pursuant to the Agreement,
and only to the extent that such shares remain subject to the Company's
Repurchase Option under the Agreement.
Dated: February 1, 1999
/s/ Xxxx Xxxx
----------------------------------
(Signature)
__________________________________
(Print Name)
INSTRUCTION: Please do not fill in any blanks other than the Signature line. The
purpose of this Assignment is to enable the Company to exercise its repurchase
option set forth in the Agreement without requiring additional signatures on the
part of Purchaser.
FOUNDER STOCK PURCHASE AGREEMENT
EXHIBIT D
JOINT ESCROW INSTRUCTIONS
Xxxxx X. Xxxxxx
Secretary
AFFILIATION, INC.
Ladies and Gentlemen:
As Escrow Agent for both AFFILIATION, INC., a Delaware corporation
("Corporation") and Xxxx Xxxx ("Purchaser"), you are hereby authorized and
directed to hold the documents delivered to you pursuant to the terms of that
certain Founder Stock Purchase Agreement dated as of February 1, 1999
("Agreement"), to which a copy of these Joint Escrow Instructions is attached as
Exhibit D, in accordance with the following instructions:
1. In the event Corporation or an assignee shall elect to exercise the
Repurchase Option set forth in the Agreement, the Corporation or its assignee
will give to Purchaser and you a written notice specifying the number of shares
of stock to be purchased, the purchase price, and the time for a closing
thereunder at the principal office of the Corporation. Purchaser and the
Corporation hereby irrevocably authorize and direct you to close the transaction
contemplated by such notice in accordance with the terms of said notice.
2. At the closing, you are directed (a) to date the stock assignments
necessary for the transfer in question, (b) to fill in the number of shares
being transferred, and (c) to deliver the same, together with the certificate
evidencing the shares of stock to be transferred, to the Corporation against the
simultaneous delivery to you of the purchase price (which may include suitable
acknowledgment of cancellation of indebtedness) for the number of shares of
stock-being purchased pursuant to the exercise of the Repurchase Option.
3. Purchaser irrevocably authorizes the Corp oration to deposit with you
any certificates evidencing shares of stock to be held by you hereunder and any
additions and substitutions to said shares as specified in the Agreement.
Purchaser does hereby irrevocably constitute and appoint you as his attorney-in-
fact and agent for the term of this escrow to execute with respect to such
securities all documents necessary or appropriate to make such securities
negotiable and complete any transaction herein contemplated, including but not
limited to any appropriate filing with state or government officials or bank
officials. Subject to the provisions of this paragraph 3, Purchaser shall
exercise all rights and privileges of a shareholder of the Corporation while the
stock is held by you.
4. This escrow shall terminate upon the exercise in full or expiration of
the Repurchase Option, whichever occurs first.
5. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to Purchaser,
you shall deliver all of the same to Purchaser and shall be discharged of all
further obligations hereunder; provided, however, that
FOUNDER STOCK PURCHASE AGREEMENT
if at the time of termination of this escrow you are advised by the Corporation
that any property subject to this escrow is the subject of a pledge or other
security agreement, you shall deliver all such property to the pledgeholder or
other person designated by the Corporation.
6. Except as otherwise provided in these Joint Escrow Instructions, your
duties hereunder may be altered, amended, modified or revoked only by a writing
signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties. You
shall not be personally liable for any act you may do or omit to do hereunder as
Escrow Agent or as attorney-in-fact for Purchaser while acting in good faith and
in the exercise of your own good judgment, and any act done or omitted by you
pursuant to the advice of your own attorneys shall be conclusive evidence of
such good faith.
8. You are hereby expressly authorized to disregard any and all warnings
given by any of the par-ties hereto or by any other person or corporation,
excepting only orders or process of courts of law, and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. In
case you obey or comply with any such order, judgment or decree of any court,
you shall not be liable to any of the parties hereto or to any other person,
firm or corporation by reason of such compliance, notwithstanding any such
order, judgment or decree being subsequently reversed, modified, annulled, set
aside, vacated or found to have been entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
10. You shall not be liable for the outlawing of any rights under any
statute of limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
11. Your responsibilities as Escrow Agent hereunder shall terminate if you
shall cease to be Secretary of the Corporation or if you shall resign by written
notice to each party. In the event of any such termination, the Corporation
shall appoint any officer or assistant officer of the Corporation as successor
Escrow Agent, and Purchaser hereby confirms the appointment of such successor as
his attorney-in-fact and agent to the full extent of your appointment.
12. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
13. It is understood and agreed that should any dispute arise with respect
to the delivery and/or ownership or right of possession of the securities held
by you hereunder, you are authorized and directed to retain in your possession
without liability to anyone all or any part of said securities until such
dispute shall have been settled either by mutual written agreement of the
FOUNDER STOCK PURCHASE AGREEMENT
parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
14. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery, including delivery
by express courier, or five (5) days after deposit in the United States Post
Office, by registered or certified mail with postage and fees prepaid, addressed
to each of the other parties entitled to such notice at the following addresses,
or at such other addresses as a party may designate by ten days' advance written
notice to each of the other parties hereto.
Corporation: Affiliation, Inc.
000 Xxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Purchaser: Xxxx Xxxx
000 Xxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Escrow Agent: Xxxxx X. Xxxxxx
XXXXXX GODWARD LLP
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
15. By signing these Joint Escrow Instructions, you become a party hereto
only for the purpose of said Joint Escrow Instructions; you do not become a
party to the Agreement.
16. You shall be entitled to employ such legal counsel and other experts
(including, without limitation, the firm of Xxxxxx Godward LLP) as you may deem
necessary properly to advise you in connection with your obligations hereunder.
You may rely upon the advice of such counsel, and you may pay such counsel
reasonable compensation therefor. The Corporation shall be responsible for all
fees generated by such legal counsel in connection with your obligations
hereunder.
17. This instrument shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. It is
understood and agreed that references to "you" and "your" herein refer to the
original Escrow Agents. It is understood and agreed that the Corporation may at
any time or from time to time assign its rights under the Agreement and these
Joint Escrow Instructions.
FOUNDER STOCK PURCHASE AGREEMENT
18. This Agreement shall be governed by and interpreted and determined in
accordance with the laws of the State of California, as such laws are applied by
California courts to contracts made and to be performed entirely in California
by residents of that state.
Very truly yours,
AFFILIATION, INC.
By: /s/ Xxxx Xxxx
-------------------------------------
Xxxx Xxxx,
President and Chief Executive Officer
PURCHASER:
/s/ Xxxx Xxxx
-------------------------------------
XXXX XXXX
ESCROW AGENT:
/s/ Xxxxx X. Xxxxxx
--------------------------
XXXXX X. XXXXXX, SECRETARY
FOUNDER STOCK PURCHASE AGREEMENT
