EXHIBIT 10.61
ASSIGNMENT OF VOTING RIGHTS
THIS Assignment of Voting Rights (the "Agreement"), dated March 30,
2001, between Interactive Telesis Inc., a Delaware corporation, having a
mailing address of 00000 Xxxx Xxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxxx, XX
00000-0000 ("the Borrower"), and XXXXXXXXX & XXXXX GUARANTY FINANCE, LLC, a
California limited liability company, having a mailing address at Xxx Xxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("Secured Lender) is made and
executed on the following terms and conditions. Secured Lender has granted to
Borrower's Board of Directors (the "Directors") a loan or loans and other
financial accommodations. This Agreement shall remain in full force and
effect until all Obligations of Borrower to Secured Party (other than
Obligations under the Equity Line of Credit Agreement and any stock purchase
warrants) have been paid and performed in full and all obligations of Secured
Lender to provide loan or other debt financings have been terminated.
RECITALS
WHEREAS, the parties hereto desire to enter into this Agreement in
connection with that certain Loan and Security Agreement between Secured
Lender and Borrower, dated November 21, 2000 (the "Loan and Security
Agreement").
1. DEFINITIONS:
1.1 "LOAN" OR "LOANS" shall mean and include any and all loans and
financial accommodations from Secured Lender to Borrower, whether now or
hereafter existing, and however evidenced, including without limitation those
loans and financial accommodations described in the Loan and Security
Agreement between the parties dated November 21, 2000 or described the
Schedule attached thereto or amendments thereof.
1.2 OBLIGATIONS: shall mean all present and future Loans, advances,
debts, liabilities, obligations, guaranties, covenants, duties and
indebtedness at any time owing by Borrower to Secured Lender, whether arising
under this Agreement or any Related Document or any note or any other
instrument, document or agreement (whether or not relating hereto), whether
arising from an extension of credit, opening of a letter of credit, banker's
acceptance, loan, guaranty, indemnification or otherwise, whether direct or
indirect (including, without limitation, those acquired by assignment and any
participation by Secured Lender in Borrower's debts owing to others),
absolute or contingent, monetary or non-monetary, due or to become due,
including, without limitation, all interest, charges, expenses, fees,
attorney's fees, accountants' fees, expert witness fees, letter of credit
fees, loan fees, termination fees, and any other sums chargeable to Borrower
under this Agreement or under any other present or future instrument or
agreement between Borrower and Secured Lender.
SECTION 1.3 "SHARES": As used in this Agreement, the term "SHARES"
shall include the shares of Series A Preferred Stock of the Borrower held
and/or beneficially owned by the Secured Lender as of the
date of this Voting Agreement as well as (a) any securities of the Borrower
distributed with respect to or on account of such shares pursuant to any
stock dividend, stock split or similar recapitalization of the Borrower; (b)
any securities of the Borrower distributed with respect to on account of a
formal agreement between the parties; and (c) any other shares of capital
stock of the Borrower issued to the Secured Lender or acquired by the Secured
Lender from third parties subsequent to the date of this Voting Agreement.
2. RIGHTS AND DUTIES AS A SHAREHOLDER OF THE BORROWER:
(a) Until the termination of this Agreement as hereinafter provided
and except as otherwise specifically provided herein, the Directors shall
possess and shall be entitled in their discretion, and not subject to any
review, to exercise in person or by proxy in respect of the rights and powers
to vote the Shares in any Common Stock corporate or shareholders' action of
any kind, with or without a meeting. This Agreement does not grant the right
to vote the shares in any event which would allow the holders of Series A
Convertible Preferred Stock to vote as a separate class, including the
creation of any new series of preferred stock or the issuance of additional
shares of capital stock of the Borrower that ranks senior to or on a parity
basis with the Series A Convertible Preferred Stock, or which would modify
the rights or preferences of the Series A Convertible Preferred Stock.
(b) In voting the Shares assigned to the Directors hereunder, the
Director will vote and act in all matters in accordance with this Agreement;
but assumes no responsibility or liability in respect of any action taken by
them in accordance herewith or taken as a result of his vote so cast, except
in the case of the Director's willful default, gross negligence or reckless
disregard of duty.
(c.) The duties and responsibilities of the Directors shall be
limited to those expressly set forth in this Agreement and any amendments
hereto which the Directors have executed.
3. TERMINATION: This Agreement shall terminate, without any action or notice
by the Secured Party or the Borrower, with respect to each share upon the
earliest of (I) the date upon which the outstanding principal balance on the
Convertible Loan, as defined in the Loan and Security Agreement, is repaid or
converted in full; (ii) the date upon which the Shares subject to this
Agreement are sold to any person or entity not affiliated with the Secured
Party; (iii) the effective date of a merger or consolidation of the Borrower
or an exchange or other reorganization where the Borrower is not the
surviving or parent corporation (other than a merger effected for the purpose
of changing the Borrower's jurisdiction of incorporation); (iv) the sale,
lease, transfer or other disposition of all or substantially all of the
Borrower's assets (other than the sale of inventory in the ordinary course of
business); (v) the voluntary or involuntary dissolution of the Borrower.
4. ENTIRE AGREEMENT: This Agreement sets forth the entire agreement of the
parties with respect to the subject matter hereof and, except as otherwise
set forth herein, may not be amended or modified, and no rights or provisions
herein may be waived, without the written approval of the parties and hereto,
or their successors in interest.
5. APPLICABLE LAW, VENUE. This Agreement has been executed, delivered and
accepted by each party hereto in the State of California, and this Agreement
shall be governed by and construed in accordance with the laws of the State
of California. As a material part of the consideration to Secured Lender to
enter into this Agreement, Borrower (i) agrees that all actions and
proceedings relating directly or indirectly to this Agreement shall, at
Secured Lender's option, be litigated in courts located within California,
and that the exclusive venue therefor shall be San Francisco County; (ii)
consents to the jurisdiction and venue of any such court and consents to
service of process in any such action or proceeding by personal delivery or
any other method permitted by law; and (iii) waives any and all rights
Borrower may have to object to the jurisdiction of any such court, or to
transfer or change the venue of any such action or proceeding.
6. NOTICES. All notices to be given under this Agreement shall be in writing
and shall be given either personally or by reputable private delivery service
or by regular first-class mail, or certified mail return receipt requested,
addressed to Secured Lender or Borrower at the addresses shown in the heading
to this Agreement, or at any other address designated in writing by one party
to the other party. All notices shall be deemed to have been given upon
delivery in the case of notices personally delivered, or at the expiration of
one business day following delivery to the private delivery service, or two
business days following the deposit thereof in the United States mail, with
postage prepaid. Any party may change its address for notices under this
Agreement by giving formal written notice to the other parties, specifying
that the purpose of the notice is to change the party's address. To the
extent permitted by applicable law, if there is more than one Borrower,
notice to any Borrower will constitute notice to all Borrowers. For notice
purposes, Borrower agrees to keep Secured Lender informed at all times of
Borrower's current address(es).
7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
8. IRREVOCABILITY: Except as otherwise provided in this Agreement, the
Agreement is irrevocable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first written above.
SECURED PARTY:
XXXXXXXXX & XXXXX GUARANTY FINANCE, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
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Printed Name: XXXXXX X. XXXXXXXX
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Title: CHIEF EXECUTIVE OFFICER
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BORROWER:
INTERACTIVE TELESIS INC.
By:
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Printed Name:
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Title: CHAIRMAN OF THE BOARD OF DIRECTORS
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