EXHIBIT 10.10
LOAN AGREEMENT
This Loan Agreement is made and entered into effective as of February 1,
2001 (the "EFFECTIVE DATE") by and among, FormFactor, Inc., a Delaware
corporation ("LENDER"), and Xxxxxx Xxxxxxxxx (the "BORROWER"). The term "LOAN
DOCUMENTS" as used herein means, collectively, this Loan Agreement, the Secured
Full Recourse Promissory Note and the Stock Pledge Agreement (each as defined
below) executed and delivered pursuant hereto, and any other documents executed
or delivered by Borrower pursuant to this Loan Agreement or in connection with
the Loan (as defined below).
WHEREAS, Lender desires to loan a certain sum to Borrower and Borrower
wishes to borrow a certain sum from Lender on and subject to the terms and
conditions contained in this Loan Agreement;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this Loan
Agreement, Lender and Borrower hereby agree as follows:
1. AMOUNT AND TERMS OF CREDIT.
1.1 COMMITMENT TO LEND. Subject to all the terms and conditions
of this Loan Agreement, and in reliance on the representations, warranties and
covenants of Borrower set forth in this Loan Agreement, the Lender agrees to
make a loan of funds on the date of the Secured Full Recourse Promissory Note to
Borrower on a non-revolving basis in the principal amount of One Hundred Fifty
Thousand Dollars (U.S. $150,000.00) (the "LOAN").
1.2 NOTE. Borrower's indebtedness to Lender under the Loan will
be evidenced by a Secured Full Recourse Promissory Note executed by Borrower in
the form attached hereto as Exhibit "A" (the "NOTE"). The Note will provide that
interest will compound semi-annually on the unpaid principal at a rate equal to
five and one hundredths percent (5.01%) per annum.
1.3 SECURITY. Borrower's indebtedness to Lender under the Loan
will be secured by a security interest in any and all shares of capital stock
issuable or issued upon each and every exercise of that certain Stock Option
Agreement dated as of August 17, 2000, between Lender and Borrower, exerciseable
to purchase up to 125,000 shares of Common Stock of Lender (all such shares
issuable upon exercise of such options, and all dividends thereon and proceeds
thereof, are collectively referred to herein as the "SECURITIES") pursuant to a
Stock Pledge Agreement in the form attached hereto as Exhibit "B" (the "PLEDGE
AGREEMENT"), executed by Borrower in favor of Lender.
1.4 PREPAYMENT. Borrower may at any time and from time to time
prepay the Loan in whole or in part in amounts of at least Five Thousand Dollars
(U.S. $5,000.00). Each prepayment will be applied as follows: (a) first, to the
payment of interest accrued on the Loan, and (b) second, to the extent that the
amount of such prepayment exceeds the amount of all such accrued interest, to
the payment of principal on the Loan.
2. CLOSING DATE; DELIVERIES.
2.1 CLOSING DATE. The closing of the Loan (the "CLOSING") will be
held at the Company's offices on the Effective Date, or at such other time and
place as Borrower and Lender may mutually agree.
2.2 DELIVERY BY LENDER OF LOAN. At the Closing, Lender will
deliver to the Borrower the amount of the Loan by check, which delivery Borrower
agrees shall constitute a full funding of the Loan to Borrower.
2.3 DELIVERY BY BORROWER OF LOAN DOCUMENTS. At the Closing,
Borrower will execute and deliver to Lender the Note and Pledge Agreement and
the attached Spouse Consent.
3. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby
represents and warrants to Lender that:
3.1 TITLE TO SECURITIES. Other than as set forth in the Pledge
Agreement, the Securities are free and clear of all liens, encumbrances and
security interests.
4. CONDITIONS PRECEDENT TO LOAN. The obligation of Lender to make the
Loan is subject to the satisfaction (or written waiver by Lender) of all the
following conditions precedent:
4.1 REPRESENTATIONS TRUE. All representations and warranties of
Borrower contained in this Loan Agreement and in all other Loan Documents will
be true, correct and complete in all respects.
4.2 NOTE AND PLEDGE AGREEMENT. Lender will have received the Note
and Pledge Agreement representing the Loan, duly executed by Borrower, and the
attached Spouse Consent, duly executed by Borrower's spouse, if any.
5. OTHER COVENANTS OF BORROWER. Borrower hereby covenants and agrees
with Lender as follows:
5.1 FURTHER ASSURANCES. In addition to the obligations and
documents that this Loan Agreement expressly requires Borrower to execute,
deliver and perform, Borrower will execute, deliver and perform any and all
further acts or documents which Lender may reasonably require in order to carry
out the purposes of this Loan Agreement or any of the other Loan Documents.
6. DEFAULT OF BORROWER.
6.1 DEFAULT; ACCELERATION. Borrower will be deemed to be in
default under the Note, and the outstanding unpaid principal sum of the Note,
together with all interest accrued thereon, will immediately become due and
payable in full without the need for any further action on the part of Lender
(a) immediately upon termination of the employment of Borrower, for any
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reason, with Lender or Lender's successor in interest; (b) upon any voluntary or
involuntary transfer of any of the Securities or any interest therein,
Borrower's sale or other voluntary conveyance of the Securities (except for a
transfer to the Lender, or an exchange of the Securities for stock in an
acquisition of or a recapitalization, merger or other reorganization by Lender);
(c) upon the filing by or against Borrower of any voluntary or involuntary
petition in bankruptcy or any petition for relief under the federal bankruptcy
code or any other state or federal law for the relief of debtors; provided
however, that with respect to an involuntary petition in bankruptcy, Borrower
will not be deemed to be in default of the Note unless such involuntary petition
has not been dismissed within sixty (60) days after the filing of such petition;
(d) upon the execution by Borrower of an assignment for the benefit of creditors
or the appointment of a receiver, custodian, trustee or similar party to take
possession of Borrower's assets or property; or (f) upon the failure of any
representation or warranty in the Pledge Agreement to have been true, the
failure of Borrower to perform any obligation under this Note or the Pledge
Agreement, or any other breach by the Borrower of this Note or the Pledge
Agreement.
6.2 REMEDIES UPON DEFAULT. Upon any default of Borrower under the
Note, Lender will have, in addition to its rights under the Note and the Pledge
Agreement, full recourse against any real, personal, tangible or intangible
assets of Borrower and may pursue any legal or equitable remedies that are
available to Lender. The rights and remedies of Lender herein provided will be
cumulative and not exclusive of any other rights or remedies provided by law or
otherwise.
7. MISCELLANEOUS.
7.1 SURVIVAL. The representations and warranties of Borrower
contained in or made pursuant to this Loan Agreement and all the other Loan
Documents will survive the execution and delivery of the Loan Documents.
7.2 ENTIRE AGREEMENT. This Loan Agreement, the Note, and the
Pledge Agreement constitute the entire agreement and understanding among the
parties with respect to the subject matter thereof and supersede any prior
understandings or agreements of the parties with respect to such subject matter.
7.3 SUCCESSORS AND ASSIGNS. The terms and conditions of this Loan
Agreement will inure to the benefit of and be binding upon the respective
successors and assigns of the parties; provided however, that Borrower may not
assign or delegate any of its rights or obligations hereunder or under any other
Loan Document or any interest herein or therein without Lender's prior written
consent.
7.4 NO THIRD PARTY BENEFICIARIES; CONSTRUCTION. Nothing in this
Loan Agreement, express or implied, is intended to confer upon any third party
any rights, remedies, obligations, or liabilities under or by reason of this
Loan Agreement, except as expressly provided in this Loan Agreement. This Loan
Agreement and its exhibits are the result of negotiations between the parties
and have been reviewed by each party hereto; accordingly, this Loan Agreement
will be deemed to be the product of the parties hereto, and no ambiguity will be
construed in favor of or against any party.
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7.5 GOVERNING LAW. This Loan Agreement will be governed by and
construed in accordance with the internal laws of the State of California as
applied to agreements entered into solely between residents of, and to be
performed entirely in, such State, without reference to that body of law
relating to conflicts of law or choice of law.
7.6 COUNTERPARTS. This Loan Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
7.7 MODIFICATION; WAIVER. This Loan Agreement may be modified or
amended only by a writing signed by both parties hereto. No waiver or consent
with respect to this Loan Agreement will be binding unless it is set forth in
writing and signed by the party against whom such waiver is asserted. No course
of dealing between Borrower and Lender will operate as a waiver or modification
of any party's rights under this Loan Agreement or any other Loan Document. No
delay or failure on the part of either party in exercising any right or remedy
under this Loan Agreement or any other Loan Document will operate as a waiver of
such right or any other right. A waiver given on one occasion will not be
construed as a bar to, or as a waiver of, any right or remedy on any future
occasion.
7.8 SEVERABILITY. The invalidity or unenforceability of any term
or provision of this Loan Agreement will not affect the validity or
enforceability of any other term or provision hereof. In the event of any
conflict between the terms of this Loan Agreement and the Note, the terms of the
Note will control.
7.9 ATTORNEY'S FEES. If any party hereto commences or maintains
any action at law or in equity (including counterclaims or cross-complaints)
against the other party hereto by reason of the breach or claimed breach of any
term or provision of this Loan Agreement or any other Loan Document, then the
prevailing party in said action will be entitled to recover its reasonable
attorney's fees and court costs incurred therein.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Loan Agreement as of the Effective Date.
FORMFACTOR, INC.
/s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxx Xxxxxxxx
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Xxxxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxx
---------------------------------
Title: CEO
--------------------------------
ATTACHMENTS:
Exhibit A - Secured Full Recourse Promissory Note
Exhibit B - Stock Pledge Agreement
Exhibit C - Spouse Consent
[SIGNATURE PAGE TO LOAN AGREEMENT]
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EXHIBIT A TO LOAN AGREEMENT
SECURED FULL RECOURSE PROMISSORY NOTE
$150,000.00 February 1, 2001
1. Obligation. For value received in the form of a loan in the principal
sum of One Hundred Fifty Thousand Dollars ($150,000.00), receipt of which is
hereby acknowledged, Xxxxxx Xxxxxxxxx (the "BORROWER"), hereby promises to pay
on or before the sixth anniversary of the date of this Note, to the order of
FormFactor, Inc., a Delaware corporation (the "LENDER"), at the Lender's
principal place of business at 0000 Xx Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, or at
such other place as the Lender may direct, the principal sum of One Hundred
Fifty Thousand Dollars (U.S. $150,000.00), together with interest compounded
semi-annually on the unpaid principal at the rate of five and one hundredths
(5.01%) per annum which rate is not less than the minimum rate established
pursuant to Section 1274(d) of the Internal Revenue Code of 1986.
2. Sale of Securities; Prepayments; Tender and Application of Payments.
Borrower agrees that the proceeds from any sale, assignment, transfer or pledge
of any of the Securities, or any other securities of Lender hereafter acquired
by Borrower, will be paid promptly thereafter to the Company to be applied to
Borrower's obligation under this Note. Prepayment of principal and/or interest
due under this Note may be made at any time, without penalty, in amounts of at
least Five Thousand Dollars (U.S. $5,000.00). Unless otherwise agreed to in
writing by the holder hereof, all payments and prepayments will be made in
lawful tender of the United States and will first be applied to the payment of
accrued interest and the remaining balance of such payment, if any, will then be
applied to the payment of principal.
3. Default; Acceleration. The Borrower will be deemed to be in default
under this Note, and the outstanding unpaid principal sum of this Note, together
with all interest accrued thereon, will immediately become due and payable in
full without the need for any further action on the part of the holder hereof:
(a) immediately upon termination of the employment of Borrower, for any reason,
with the Lender or the Lender's successor in interest; (b) upon any voluntary or
involuntary transfer of any of the Securities (as defined below in Section 5) or
any interest therein, Borrower's sale or other voluntary conveyance of the
Securities (except for a transfer to the Lender, or an exchange of the
Securities for stock in an acquisition of or recapitalization, merger or other
reorganization by Lender); (c) upon the filing by or against the Borrower of any
voluntary or involuntary petition in bankruptcy or any petition for relief under
the federal bankruptcy code or any other state or federal law for the relief of
debtors; provided however, that with respect to an involuntary petition in
bankruptcy, the Borrower will not be deemed to be in default of this Note unless
such involuntary petition has not been dismissed within sixty (60) days after
the filing of such petition; (d) upon the execution by the Borrower of an
assignment for the benefit of creditors or the appointment of a receiver,
custodian, trustee or similar party to take possession of the Borrower's assets
or property; (e) upon Borrower's failure to make any payment when due under this
Note; or (f) upon the failure of any representation or warranty in the Pledge
Agreement to have been true, the failure of Borrower to perform any
obligation under this Note or the Pledge Agreement, or any other breach by the
Borrower of this Note or the Pledge Agreement.
4. Remedies Upon Default. Upon any default of the Borrower under this
Note, the Lender will have, in addition to its rights under this Note and the
Pledge Agreement referred to in Section 5 below, full recourse against any real,
personal, tangible or intangible assets of the Borrower, and may pursue any
legal or equitable remedies that are available to it. Without limiting the
foregoing sentence, upon any default of the Borrower under this Note, the Lender
may set off against all wages, vacation pay and other amounts due or to be due
by Lender to Borrower against amounts due under this Note. The rights and
remedies of the holder herein provided will be cumulative and not exclusive of
any other rights or remedies provided by law or otherwise.
5. Security. Payment of this Note is secured by any and all shares of
capital stock issuable or issued upon each and every exercise of that certain
Stock Option Agreement dated as of August 17, 2000, between Lender and Borrower,
exerciseable to purchase up to 125,000 shares of Common Stock of Lender (all
such shares issuable upon exercise of such options, and all dividends thereon
and proceeds thereof, are collectively referred to herein as the "SECURITIES")
pursuant to a Stock Pledge Agreement executed by the Borrower in favor of Lender
(the "PLEDGE AGREEMENT").
6. Waiver and Amendment. Any provision of this Note may be amended or
modified only by a writing signed by both the Lender hereof and the Borrower. No
waiver or consent with respect to this Note will be binding or effective unless
it is set forth in writing and signed by the party against whom such waiver is
asserted. No course of dealing between the Lender and the Borrower will operate
as a waiver or modification of any party's rights or obligations under this
Note. No delay or failure on the part of either party in exercising any right or
remedy under this Note will operate as a waiver of such right or any other
right. A waiver given on one occasion will not be construed as a bar to, or as a
waiver of, any right or remedy on any future occasion.
7. Definitions. Capitalized terms that are not defined herein shall have
the meanings ascribed to them in the Loan Agreement of even date herewith
delivered by Borrower to Lender (the "LOAN AGREEMENT").
8. Governing Law. This Note will be governed by and construed in
accordance with the internal laws of the State of California as applied to
agreements entered into solely between residents of, and to be performed
entirely in, such State, without reference to that body of law relating to
conflicts of law or choice of law.
9. Waivers. The Borrower hereby waives presentment, notice of
non-payment, notice of dishonor, protest, demand and diligence.
10. Attorney's Fees. The Borrower agrees to pay reasonable expenses and
costs of the Lender hereof in enforcing and collecting this Note, including
without limitation attorney's
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fees and court costs, whether or not a lawsuit is brought and whether or not any
such suit is prosecuted to judgment.
11. Successors and Assigns. The provisions of this Note will inure to
the benefit of, and be binding on, each party's respective heirs, successors and
assigns. The Borrower acknowledges that he may not assign or delegate any of his
obligations under this Note without prior written consent of the Lender hereof.
12. Severability. The invalidity or unenforceability of any term or
provision of this Note will not affect the validity or enforceability of any
other term or provision hereof. In the event of any conflict between the terms
of this Note and the Loan Agreement, the terms of this Note will control.
IN WITNESS WHEREOF, Borrower has executed this Note as of
February 1, 2001.
/s/ Xxxxxx Xxxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxxx
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EXHIBIT B TO LOAN AGREEMENT
STOCK PLEDGE AGREEMENT
This Pledge Agreement is made and entered into as of February 1, 2001
between FormFactor, Inc., a Delaware corporation (the "COMPANY"), and Xxxxxx
Xxxxxxxxx ("PLEDGOR"). Capitalized terms that are not defined herein shall have
the meanings ascribed to them in the Secured Full Recourse Promissory Note of
even date herewith delivered by Pledgor to the Company (the "NOTE").
R E C I T A L S
A. In exchange for delivery of the Note to the Company, the
Company has loaned Pledgor One Hundred Fifty Thousand Dollars ($150,000.00)
pursuant to the terms of the Note.
B. Pledgor has agreed that repayment of the Note will be secured
by the pledge of any and all shares of capital stock issuable or issued upon
each and every exercise of that certain Stock Option Agreement dated as of
August 17, 2000, between Company and Pledgor, exerciseable to purchase up to
125,000 shares of Common Stock of Company (such options are referred to herein
as the "OPTIONS" and such shares issuable upon exercise of the Options are
collectively referred to herein as the "SECURITIES").
NOW, THEREFORE, the parties agree as follows:
1. CREATION OF SECURITY INTEREST. Pursuant to the provisions of
the California Uniform Commercial Code, Pledgor hereby grants to the Company,
and the Company hereby accepts, a first and present security interest in (a) the
Securities, (b) all Dividends (as defined in Section 5), and (c) all proceeds of
the Options, the Securities and all Dividends, to secure payment of the Note and
performance of all Pledgor's obligations under this Pledge Agreement. Pledgor
herewith agrees to deliver, upon each and every exercise of any Option, the
stock certificate issued representing all Securities issued upon each such
exercise (each such stock certificate, a "CERTIFICATE") to the Secretary of the
Company or other designee of the Company (the "ESCROW HOLDER"), who is hereby
appointed to hold all such Certificates in escrow and to take all actions and to
effectuate all such transfers and/or releases of such Securities as are in
accordance with the terms of the Loan Documents. Pledgor and the Company agree
that the Escrow Holder will not be liable to any party to this Pledge Agreement
(or to any other party) for any actions or omissions unless the Escrow Holder is
grossly negligent or intentionally fraudulent in carrying out the duties of
Escrow Holder under the Loan Documents. Escrow Holder may rely upon any letter,
notice or other document executed by any signature purported to be genuine and
may rely on the advice of counsel and obey any order of any court with respect
to the transactions contemplated by the Loan Documents. Immediately upon each
exercise of any Option, the Certificate representing the Securities issued upon
such exercise shall, with no further action by Pledgor, be delivered to Escrow
Holder, and Pledgor agrees to concurrently
therewith execute a stock power covering such Certificate, in the form attached
hereto as Exhibit 1 (with the date and number of shares left blank), and to
cause Pledgor's spouse (if any) to execute such stock power, and to deliver such
stock power to the Escrow Holder. For purposes of this Pledge Agreement, the
Securities, all Dividends and all proceeds of the Options, the Securities and
all Dividends will hereinafter collectively be referred to as the "COLLATERAL."
2. REPRESENTATIONS, WARRANTIES AND COVENANTS RE COLLATERAL.
Pledgor hereby represents and warrants to the Company that Pledgor has good
title (both record and beneficial) to the Collateral, free and clear of all
claims, pledges, security interests, liens or encumbrances of every nature
whatsoever, and that Pledgor has the right to pledge and grant the Company the
security interest in the Collateral granted under this Pledge Agreement. Pledgor
further agrees that, until all sums due under the Note have been paid in full
and all Purchaser's obligations under this Pledge Agreement have been performed,
Purchaser will not, without the Company's prior written consent, (a) sell,
assign or transfer, or attempt to sell, assign or transfer, any of the Options
or the Collateral, (b) grant or create, or attempt to grant or create, any
security interest, lien, pledge, claim or other encumbrance with respect to any
of the Options or the Collateral, or (c) suffer or permit to continue upon any
of the Options or the Collateral during the term of this Pledge Agreement, any
attachment, levy, execution or statutory lien.
3. RIGHTS ON DEFAULT. Upon the occurrence of an event of default
under Section 3 of the Note (an "EVENT OF DEFAULT"), the Company will have full
power to sell, assign and deliver or otherwise dispose of the whole or any part
of the Collateral at any broker's exchange or elsewhere, at public or private
sale, at the option of the Company, in order to satisfy any part of the
obligations of Pledgor now existing or hereinafter arising under the Note or
under this Pledge Agreement. On any such sale, the Company or its assigns may
purchase all or any part of the Collateral. In addition, at its sole option, the
Company may elect to retain all of the Collateral in full satisfaction of
Pledgor's obligation under the Note, in accordance with the provisions and
procedures set forth in the California Uniform Commercial Code. Pledgor shall,
at the Company's request, cooperate with the Company in connection with the
disposition of any and all of the Collateral and shall execute and deliver any
documents which the Company shall reasonably request to permit disposition of
the Collateral.
4. ADDITIONAL REMEDIES. The rights and remedies granted to the
Company herein upon an Event of Default will be in addition to all the rights,
powers and remedies of the Company under the California Uniform Commercial Code
and applicable law and such rights, powers and remedies will be exercisable by
the Company with respect to all of the Collateral. Pledgor agrees that the
Company's reasonable expenses of holding the Collateral, preparing it for resale
or other disposition, and selling or otherwise disposing of the Collateral,
including attorney's fees and other legal expenses, will be deducted from the
proceeds of any sale or other disposition and will be included in the amounts
Pledgor must tender to redeem the Collateral. All rights, powers and remedies of
the Company will be cumulative and not alternative. Any forbearance or failure
or delay by the Company in exercising any right, power or remedy hereunder will
not be deemed to be a waiver of any such right, power or remedy and any single
or partial exercise of any such right, power or remedy hereunder will not
preclude the further exercise thereof.
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5. DIVIDENDS; VOTING. All dividends hereinafter declared on or
payable with respect to any of the Collateral during the term of this Pledge
Agreement (the "DIVIDENDS") shall be retained by the Company hereunder,
provided, however, that so long no Event of Default has occurred, all Dividends
paid on account of the Securities in cash shall be paid directly to the Pledgor.
Nothing in this Pledge Agreement shall affect Pledgor's voting rights in any
securities of the Company owned by the Pledgor.
6. ADJUSTMENTS. In the event that during the term of this Pledge
Agreement, any stock dividend, reclassification, readjustment, stock split or
other change is declared or made with respect to the Collateral, or if warrants
or any other rights, options or securities are issued in respect of the
Collateral (each "ADDITIONAL SECURITIES"), then all new, substituted and/or
Additional Securities issued by reason of such change or by reason of the
exercise of such warrants, rights, options or securities, will, if delivered to
the Pledgor, be immediately surrendered to the Company or otherwise will be
retained by the Company to be held under the terms of this Pledge Agreement as
and in the same manner as the Collateral is held hereunder.
7. RIGHTS UNDER PURCHASE AGREEMENT; SETOFF. Pledgor understands
and agrees that the Company's rights to repurchase the Collateral under any
agreements executed by Pledgor in connection with Pledgor's purchase of the
Securities (each, a "PURCHASE AGREEMENT"), if any, will continue for the periods
and on the terms and conditions specified in the respective Purchase Agreement,
whether or not the Note has been paid during such period of time, and that to
the extent that the Note is not paid during such period of time, the repurchase
by the Company of the Collateral may be made by way of cancellation of all or
any part of Pledgor's indebtedness under the Note.
8. REDELIVERY OF COLLATERAL; NO RELEASE FOR PARTIAL PAYMENT.
(a) Until all obligations of Pledgor under the Note and
under this Pledge Agreement have been satisfied in full, all Collateral will
continue to be held in pledge under this Pledge Agreement.
(b) Upon performance of all Pledgor's obligations under
the Note and this Pledge Agreement, and subject to the terms and conditions of
the Purchase Agreement, the Company will immediately redeliver the Collateral to
Pledgor and this Pledge Agreement will terminate; provided, however, that all
rights of the Company to retain possession of any of the Collateral pursuant to
each Purchase Agreement will survive termination of this Pledge Agreement.
9. FURTHER ASSURANCES. Pledgor shall, at the Company's request,
execute and deliver such further documents and take such further actions as the
Company shall reasonably request to perfect and maintain the Company's security
interest in the Collateral, or in any part thereof.
10. SUCCESSORS AND ASSIGNS. This Pledge Agreement will inure to
the benefit of the respective heirs, personal representatives, successors and
assigns of the parties hereto.
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11. GOVERNING LAW; SEVERABILITY. This Pledge Agreement will be
governed by and construed in accordance with the internal laws of the State of
California, excluding that body of law relating to conflicts of law. Should one
or more of the provisions of this Pledge Agreement be determined by a court of
law to be illegal or unenforceable, the other provisions nevertheless will
remain effective and will be enforceable.
12. MODIFICATION; ENTIRE AGREEMENT. This Pledge Agreement will
not be amended without the written consent of both parties hereto. This Pledge
Agreement together with the Note constitute the entire agreement of the parties
hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings related to such subject matter.
13. ADVERSE EFFECT UPON ISO STATUS. Pledgor hereby acknowledges
that the enforcement by the Company of its rights herein may result in Pledgor
losing the benefit of any of the Options otherwise qualifying as "incentive
stock options" within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended. PLEDGOR SHOULD CONSULT A TAX ADVISER BEFORE ENTERING INTO THIS
AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Pledge
Agreement as of the date and year first above written.
FORMFACTOR, INC.
By: /s/ Xxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxxxx
------------------------- ----------------------------------
Xxxxxx Xxxxxxxxx
Xxxx Xxxxxxxx
-----------------------------
(Please print name)
CEO
-----------------------------
(Please print title)
[SIGNATURE PAGE TO STOCK PLEDGE AGREEMENT]
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EXHIBIT 1 TO STOCK PLEDGE AGREEMENT
STOCK POWER AND ASSIGNMENT
SEPARATE FROM STOCK CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Loan Agreement dated as
of February 1, 2001 (the "LOAN AGREEMENT"), the Borrower hereby sells, assigns
and transfers unto , ________ shares of the Common Stock of FormFactor, Inc., a
Delaware corporation (the "COMPANY"), standing in the Borrower's name on the
books of the Company represented by Certificate Number ______ delivered
herewith, and does hereby irrevocably constitute and appoint the Secretary of
the Company as the Borrower's attorney-in-fact, with full power of substitution,
to transfer said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE
USED AS AUTHORIZED BY THE LOAN AGREEMENT AND ANY EXHIBITS THERETO.
Dated: ________________, 20__ BORROWER:
/s/ Xxxxxx Xxxxxxxxx
---------------------------------------
(Signature)
Xxxxxx Xxxxxxxxx
---------------------------------------
(Please Print Name)
/s/ Xxxx X. Xxxxxxxxx
---------------------------------------
(Spouse's Signature, if any)
Xxxx X. Xxxxxxxxx
---------------------------------------
(Please Print Spouse's Name)
INSTRUCTIONS: Please do not fill in any blanks other than the signature line.
The purpose of this Stock Power and Assignment is to enable the Company to
acquire the shares upon a default under Borrower's Note without requiring
additional signatures on the part of Borrower or Borrower's Spouse.
EXHIBIT C TO LOAN AGREEMENT
SPOUSE CONSENT
The undersigned spouse of Xxxxxx Xxxxxxxxx (the "PLEDGOR") has read,
understands, and hereby approves the Loan Agreement dated as of February 1, 2001
between Pledgor and FormFactor, Inc., a Delaware corporation (the "COMPANY"),
the Secured Full Recourse Promissory Note dated February 1, 2001 issued by
Pledgor to the Company and the Stock Pledge Agreement dated February 1, 2001, by
and between Pledgor and the Company (respectively, the "LOAN AGREEMENT", "NOTE"
and "PLEDGE AGREEMENT"). In consideration of the Company's granting my spouse
the right to borrow the Principal as set forth in the Note, the undersigned
hereby agrees to be irrevocably bound by the Loan Agreement, the Note and the
Pledge Agreement and further agrees that any community property interest I may
have in the Collateral (described in the above-referenced Pledge Agreement)
shall similarly be bound by the Loan Agreement, the Note and the Pledge
Agreement. The undersigned hereby appoints Pledgor as my attorney-in-fact with
respect to any amendment or exercise of any rights under the Loan Agreement, the
Note and the Pledge Agreement.
Date: 1 February 2001
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/s/ Xxxx X. Xxxxxxxxx
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Print Name of Pledgor's Spouse
Xxxx X. Xxxxxxxxx
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Signature of Pledgor's Spouse
Address:
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