AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the
[CONFIDENTIAL TREATMENT REQUESTED], 1998, by and between:
[CONFIDENTIAL TREATMENT REQUESTED]
and
Tech Squared Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxxx 00000
(the "Company").
R E C I T A L S :
WHEREAS, [CONFIDENTIAL TREATMENT REQUESTED], an employee of the Company
since [CONFIDENTIAL TREATMENT REQUESTED], holds stock options exercisable,
once vested, through [CONFIDENTIAL TREATMENT REQUESTED] to purchase up to
[CONFIDENTIAL TREATMENT REQUESTED] shares of the Company's common stock (the
"Common Stock") at an exercise price of $0.75 per share (the "Options");
WHEREAS, [CONFIDENTIAL TREATMENT REQUESTED] of the Options vested on each
of [CONFIDENTIAL TREATMENT REQUESTED], 1996 and 1997 (such [CONFIDENTIAL
TREATMENT REQUESTED] Options, and future Options as they become vested from
time to time, being referred to hereafter as the "Vested Options") and,
assuming [CONFIDENTIAL TREATMENT REQUESTED] continues in the employ of the
Company, [CONFIDENTIAL TREATMENT REQUESTED] and [CONFIDENTIAL TREATMENT
REQUESTED] of the Options will vest, respectively, on [CONFIDENTIAL TREATMENT
REQUESTED], 1998 and 1999 (such [CONFIDENTIAL TREATMENT REQUESTED] Options, or
such lesser number as may from time to time remain unvested, being referred to
hereafter as the Unvested Options");
WHEREAS, [CONFIDENTIAL TREATMENT REQUESTED] and the Company disagree on
the interpretation of [CONFIDENTIAL TREATMENT REQUESTED]'s rights to exercise
his Vested Options through various methods, among other matters; and
WHEREAS, the parties desire to enter into this Agreement to clarify the
interpretation of [CONFIDENTIAL TREATMENT REQUESTED]'s Option exercise rights
and otherwise to settle all other matters with respect to such Options and the
parties' relationship; THEREFORE, IT IS AGREED AS FOLLOWS:
1. 1995 STOCK OPTION PLAN. The parties agree that the Options were granted
pursuant to and remain subject to the terms of the 1995 Stock Option Plan of
the Company (the "Plan"). To the extent there is any conflict between the Plan
and this Agreement, this Agreement shall control.
2. METHODS FOR EXERCISE OF OPTIONS. The parties have disagreed regarding the
manners of exercise permitted and hereby agree (solely for purposes of settling
the disagreement with [CONFIDENTIAL TREATMENT REQUESTED], and not as to any
other employee of the Company) that the following are the exclusive methods by
which [CONFIDENTIAL TREATMENT REQUESTED] may exercise his Options from time to
time in his discretion:
a. CASH. [CONFIDENTIAL TREATMENT REQUESTED] has the right to exercise
all or a portion of his Vested Options at any time prior to their expiration
upon payment to the Company of the exercise price in cash or by personal check,
cashier's or certified check or wire transfer.
b. BROKER EXERCISE NOTICE. [CONFIDENTIAL TREATMENT REQUESTED] has the
right to exercise all or a portion of his Vested Options at any time prior to
their expiration through a procedure acceptable to [CONFIDENTIAL TREATMENT
REQUESTED]'s stock broker or brokers (referred to hereafter as a "Broker
Exercise Notice") pursuant to which [CONFIDENTIAL TREATMENT REQUESTED] either
(i) instructs his stock broker or brokers to sell shares, not yet owned by
[CONFIDENTIAL TREATMENT REQUESTED], with the proceeds therefrom to be used, in
whole or in part, to exercise for cash the Vested Options and with all or a
portion of the shares issued upon such exercise to be delivered to
[CONFIDENTIAL TREATMENT REQUESTED]'s stock broker or brokers to satisfy
[CONFIDENTIAL TREATMENT REQUESTED]'s sale obligation or (ii) borrows cash from
his stock broker or brokers to exercise for cash the Vested Options, with the
proceeds from the sale of all or a portion of the shares received upon such
exercise to be used, in whole or in part, to repay such loan.
c. [CONFIDENTIAL TREATMENT REQUESTED],
d. PROMISSORY NOTE. [CONFIDENTIAL TREATMENT REQUESTED] has the right to
exercise all or a portion of his Vested Options by tendering to the Company a
non-recourse promissory note of [CONFIDENTIAL TREATMENT REQUESTED] for the cash
exercise price (the "Note") substantially in the form appended hereto as
Appendix A. The Note shall be secured by a number of shares of Common Stock
issuable upon [CONFIDENTIAL TREATMENT REQUESTED]'s Option exercise computed by
dividing the principal sum of the Note by $2.00, which shares shall be held as
security by the Company pursuant to a Pledge Agreement substantially in the
form of Appendix B hereto.
e. PROCEDURE. [CONFIDENTIAL TREATMENT REQUESTED] may use one or more of the
above methods of exercise simultaneously or at any time. If [CONFIDENTIAL
TREATMENT REQUESTED] intends to exercise Vested Options, [CONFIDENTIAL
TREATMENT
-2-
REQUESTED] shall deliver a written notice to the Company (the
"Exercise Notice") specifying (i) the total number of Vested Options that
[CONFIDENTIAL TREATMENT REQUESTED] intends to exercise pursuant to his exercise
right at such time, (ii) the method or methods as described above by which he
intends to make such exercise and (iii) a place, and a date not less than three
(3) nor more than twenty (20) business days from the date of such notice, for
the closing of such purchase (the "Closing"). At any such Closing, (i)
[CONFIDENTIAL TREATMENT REQUESTED] will deliver, as appropriate for each method
described in subsections (a), (b), (c) and (d) above, respectively, the cash
exercise price (in an approved form as described above), a letter from
[CONFIDENTIAL TREATMENT REQUESTED]'s stock broker or brokers indicating such
broker's or brokers' agreement to proceed with a sale pursuant to a Broker
Exercise Notice, [CONFIDENTIAL TREATMENT REQUESTED] and/or an executed Note and
an appropriate Pledge Agreement with respect to the shares of Common Stock to
be the security therefor, (ii) the Company will deliver to [CONFIDENTIAL
TREATMENT REQUESTED] (or directly to [CONFIDENTIAL TREATMENT REQUESTED]'s stock
broker or brokers, if so instructed) a certificate or certificates (free of any
restrictive legend or stop transfer order if such shares are issued after the
effective date of the Registration Statement referred to below) for the number
of whole shares of Common Stock issuable upon such exercise ([CONFIDENTIAL
TREATMENT REQUESTED]), together with cash in lieu of any fraction of a share
(the amount of which shall be computed by determining the Fair Market Value
thereof as provided above on the date of delivery of the Exercise Notice) and
(iii) the Company will deliver to [CONFIDENTIAL TREATMENT REQUESTED] a written
statement confirming the number of Options, if any, that remain unexercised.
f. WITHHOLDING TAXES. At the Closing, [CONFIDENTIAL TREATMENT REQUESTED] may
elect to pay to the Company the minimum required federal and/or state
withholding taxes due by virtue of the issuance of the shares upon exercise of
Options by one or a combination of (i) making cash payment therefor to the
Company, (ii) tendering to the Company for cancellation shares of Common Stock
then owned by [CONFIDENTIAL TREATMENT REQUESTED] or (iii) [CONFIDENTIAL
TREATMENT REQUESTED]. Shares tendered or waived as provided by this
subsection (f) shall be valued based upon [CONFIDENTIAL TREATMENT REQUESTED]
and the maximum aggregate amount of withholding taxes which may be paid to the
Company by tender or waiver of Shares shall be $[CONFIDENTIAL TREATMENT
REQUESTED].
3. RESTRICTION ON RESALE OF SHARES.
a. In consideration of this Agreement, [CONFIDENTIAL TREATMENT REQUESTED]
agrees that, on or before [CONFIDENTIAL TREATMENT REQUESTED], 1998, he will
sell the shares of Common Stock issuable upon exercise of the [CONFIDENTIAL
TREATMENT REQUESTED] Vested Options as of the date hereof only in accordance
with the following schedule:
-3-
(i) [CONFIDENTIAL TREATMENT REQUESTED] may sell up to [CONFIDENTIAL
TREATMENT REQUESTED] shares at any time commencing on [CONFIDENTIAL
TREATMENT REQUESTED], 1998 (or if sooner, the effective date of the
Registration Statement referred to in Section 5 below);
(ii) [CONFIDENTIAL TREATMENT REQUESTED] may sell up to an additional
[CONFIDENTIAL TREATMENT REQUESTED] shares at any time commencing on
[CONFIDENTIAL TREATMENT REQUESTED], 1998; provided, however, that
[CONFIDENTIAL TREATMENT REQUESTED] may sell all or a portion of such
shares during [CONFIDENTIAL TREATMENT REQUESTED] 1998 if the sales price
is at least $2.00 per share; and
(iii) [CONFIDENTIAL TREATMENT REQUESTED] may sell up to an additional
[CONFIDENTIAL TREATMENT REQUESTED]shares at any time commencing on
[CONFIDENTIAL TREATMENT REQUESTED], 1998; provided, however, that
[CONFIDENTIAL TREATMENT REQUESTED] may sell all or a portion of such
shares during [CONFIDENTIAL TREATMENT REQUESTED] 1998 if the sales price
is at least $2.00 per share or during [CONFIDENTIAL TREATMENT REQUESTED]
1998 if the sales price is at least $1.50 per share.
In addition, [CONFIDENTIAL TREATMENT REQUESTED] agrees that, on or before
[CONFIDENTIAL TREATMENT REQUESTED], 1998, he will not sell any of the shares of
Common Stock issuable upon exercise of the [CONFIDENTIAL TREATMENT REQUESTED]
Options referred to in Section 4 below.
b. Nothing in this Agreement is intended to allow [CONFIDENTIAL TREATMENT
REQUESTED], at any time that he is in possession of "material non-public
information" to sell shares.
4. VESTING OF OPTIONS. In consideration of this Agreement, the Company
agrees that (i) no termination of [CONFIDENTIAL TREATMENT REQUESTED]'s
employment for any reason after the date hereof will affect [CONFIDENTIAL
TREATMENT REQUESTED]'s right to exercise Vested Options for ninety (90) days
after the date of such termination (but in no case later than the original
expiration date of the Options) and (ii) 142,000 of the Unvested Options (which
but for this Agreement would not vest until [CONFIDENTIAL TREATMENT REQUESTED],
1998) shall vest on the date of this Agreement and thereafter shall be Vested
Options. To the extent permitted by law, such Unvested Options, if they were
Incentive Stock Options prior to this Agreement, shall retain their character
as Incentive Stock Options but [CONFIDENTIAL TREATMENT REQUESTED] acknowledges
that the change in vesting of such options, pursuant to this Agreement, may
disqualify such options as Incentive Stock Options.
-4-
5. REGISTRATION OF SHARES UNDERLYING ALL OPTIONS. In consideration of this
Agreement, on or before [CONFIDENTIAL TREATMENT REQUESTED], 1998, the Company
agrees, at its sole expense, (i) to file a registration statement with the
Securities and Exchange Commission (the "Commission") on Form S-8 covering the
original issuance of shares of Common Stock to [CONFIDENTIAL TREATMENT
REQUESTED] upon his exercise of Options from time to time after the effective
date of such registration statement (referred to hereafter as the "Registration
Statement") and (ii) to register, qualify or exempt the original issuance of
all such shares under the blue sky laws of Minnesota. The Company at its
expense shall from time to time supply [CONFIDENTIAL TREATMENT REQUESTED] with
reasonable quantities of the Registration Statement. The Company shall
promptly notify [CONFIDENTIAL TREATMENT REQUESTED] of any stop order or other
proceeding threatened or taken by the Commission or any blue sky authority with
respect to the Registration Statement and/or any applicable blue sky
registrations, qualifications or exemptions and shall, at its own expense,
within 60 days of being notified of the issuance of any such stop order or
similar order by a blue sky authority, cause the lifting of any such stop order
or the termination of any such proceeding. Subject to the foregoing sentence,
the Company agrees, at its sole expense, to maintain (except during the 60 day
period(s) referred to in the previous sentence) the effectiveness of the
Registration Statement and Minnesota registrations (including by all
appropriate or necessary supplements or post-effective amendments to the
Registration Statement) at all times during which any Options are outstanding.
6. SECURITIES LAW INDEMNIFICATION.
a. The Company will indemnify and hold [CONFIDENTIAL TREATMENT REQUESTED]
harmless against any losses, claims, damages, liabilities, or expenses to which
he may become subject under the Act or any applicable state securities laws,
common law or any other law or any order, rule or regulation of any court or
regulatory authority, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) arise out of or are based upon (i) an
untrue statement or alleged untrue statement of a material fact contained in or
incorporated into the Registration Statement or any amendment or supplement
thereto or in any blue sky filing or (ii) an omission or alleged omission to
state in or incorporate into the Registration Statement or any amendment or
supplement thereto or in any blue sky filing a material fact required to be
stated or incorporated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
will reimburse [CONFIDENTIAL TREATMENT REQUESTED] for any legal or other
expenses reasonably incurred by him in connection with the investigating or
defending against any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement or any such amendment or supplement in
reliance upon and in conformity with written information provided to the
Company by [CONFIDENTIAL TREATMENT REQUESTED] for the preparation of the
Registration Statement.
b. [CONFIDENTIAL TREATMENT REQUESTED] will indemnify and hold the Company
harmless against any losses, claims, damages, liabilities or expenses to which
the Company may
-5-
become subject under the Act or any applicable state securities laws, common
law or any other law or any order, rule or regulation of any court or
regulatory authority, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) arise out of or are based upon (i)
an untrue statement or alleged untrue statement of a material fact contained
in or incorporated into the Registration Statement or any amendment or
supplement thereto or in any blue sky filing or (ii) an omission or alleged
omission to state in or incorporate into the Registration Statement or any
amendment or supplement thereto or in any blue sky filing a material fact
required to be stated or incorporated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and will reimburse the Company for any legal or other
expenses reasonably incurred by it in connection with the investigating or
defending against any such loss, claim, damage, liability, or action provided
however that [CONFIDENTIAL TREATMENT REQUESTED] shall be liable in any such
case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement
or any such amendment or supplement is made or omitted in reliance upon and
in conformity with written information provided to the Company by
[CONFIDENTIAL TREATMENT REQUESTED], other than solely in his capacity as an
employee of the Company, for the preparation of the Registration Statement.
c. Promptly after receipt by any party of notice of the commencement of any
action, such party shall, if a claim in respect thereof is to be made against
the other party under this Section 6, notify the other party in writing of the
commencement thereof; but the omission so to notify the other party shall not
relieve such other party from any liability that it may have to the notifying
party otherwise than under this Section 6. In case such action shall be
brought against [CONFIDENTIAL TREATMENT REQUESTED], and he shall notify the
Company of the commencement thereof, the Company shall be entitled to
participate in and to assume the defense thereof, with counsel who shall be
reasonably satisfactory to [CONFIDENTIAL TREATMENT REQUESTED]; and after notice
from the Company to [CONFIDENTIAL TREATMENT REQUESTED] of the Company's
election so to assume the defense thereof, the Company will not be liable to
[CONFIDENTIAL TREATMENT REQUESTED] under this Section 6 for any legal or other
expenses subsequently incurred by [CONFIDENTIAL TREATMENT REQUESTED] in
connection with the defense thereof.
d. The obligations of the Company and [CONFIDENTIAL TREATMENT REQUESTED]
under this Section 6 shall be in addition to any liability which the Company or
[CONFIDENTIAL TREATMENT REQUESTED] may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls the Company
or [CONFIDENTIAL TREATMENT REQUESTED] within the meaning of the Act.
7. AGREEMENT OF XXXX XXXXXXX. As an inducement for [CONFIDENTIAL TREATMENT
REQUESTED] to enter into this Agreement, Xxxx Xxxxxxx ("Xxxxxxx"), by his
signature below, agrees that Xxxxxxx will not dispose of by sale, gift (except
to donees who agree to be bound by this restriction), assignment or any other
manner any shares of Common Stock of the Company (or any interest therein) as
to which Xxxxxxx is the beneficial owner (within the meaning of the
-6-
Securities Exchange Act of 1934, as amended) neither (a) during such time as
the Registration Statement is subject to any stop order or other proceeding
threatened or taken by the Commission or any blue sky authority, as referred
to in Section 5 above, nor (b) until the later of (i) the expiration of forty
(40) days after the effective date of the Registration Statement referred to
in Section 5 above, and (ii) [CONFIDENTIAL TREATMENT REQUESTED], 1998.
8. ADJUSTMENT FOR CERTAIN EVENTS. If the Company shall at any time hereafter
(i) subdivide or combine its outstanding shares of Common Stock, (ii) declare a
dividend payable in Common Stock, (iii) effect a capital reorganization or any
reclassification of the shares of Common Stock of the Company, (iv) consolidate
with or merge into or with another corporation or (v) sell all or substantially
all of its assets to another corporation, then, as a part of such subdivision,
combination, dividend declaration, reorganization, reclassification,
consolidation, merger or sale, as the case may be, appropriate adjustment shall
be made in the application of the provisions set forth in Sections 2(d), 3 and
4 above with respect to the rights and interest thereafter of [CONFIDENTIAL
TREATMENT REQUESTED].
9. COVENANTS OF THE COMPANY.
a. Until [CONFIDENTIAL TREATMENT REQUESTED], 1998, without the prior written
consent of [CONFIDENTIAL TREATMENT REQUESTED], the Company covenants and agrees
that it will not dispose of by sale, gift, assignment or any other manner its
option to acquire securities of its subsidiary, Digital River, Inc. (or any
securities issuable thereupon if exercised prior to [CONFIDENTIAL TREATMENT
REQUESTED], 1998). On or after [CONFIDENTIAL TREATMENT REQUESTED], 1998, and
until the earlier of (i) such time as [CONFIDENTIAL TREATMENT REQUESTED] has
sold all of the shares of Common Stock issuable to him upon exercise of his
Vested Options from time to time, and (ii) [CONFIDENTIAL TREATMENT REQUESTED],
1998, the Company covenants and agrees that it will take no such action without
first giving [CONFIDENTIAL TREATMENT REQUESTED] at least ten (10) days prior
written notice thereof.
b. On the date of execution of this Agreement, the Company shall pay
[CONFIDENTIAL TREATMENT REQUESTED] a cash bonus for 1997 in the gross amount of
$[CONFIDENTIAL TREATMENT REQUESTED].
10. BREACH; REMEDIES. Time is of the essence in this Agreement. It shall
constitute a breach of this Agreement if the Company and/or Xxxxxxx fails
timely to perform each and every obligation hereunder including, without
limitation, (i) the timely delivery at Closing of certificates (as required,
free of any restrictive legend or stop transfer order) representing shares of
Common Stock being acquired by [CONFIDENTIAL TREATMENT REQUESTED] upon exercise
of Options (except to the extent that such certificates are held as security),
(ii) the timely filing and continued conformance with the Company's
obligations, as set forth herein, to maintain the effectiveness of the
Registration Statement and the obtaining of Minnesota registration,
(iv) Xxxxxxx'x abstention, as provided herein, from disposition of Common Stock
beneficially
-7-
owned by him and (v) the Company's abstention from improper
disposition of the Digital River, Inc. option. In addition to damages, a
breaching party shall be liable to the non-breaching party for costs, including
attorneys' fees.
11. MUTUAL RELEASE. In further consideration of this Agreement, the Company
and Xxxxxxx on the one hand, and [CONFIDENTIAL TREATMENT REQUESTED] on the
other hand, fully and completely release, waive and forever discharge and
promise not to xxx the other with respect to any and all manner of claims,
demands, actions, causes of action, administrative claims, promises,
agreements, contracts, rights, liability, damages, claims for attorneys' fees,
costs and disbursements, including but not limited to all claims arising in
tort or contract or under any federal, state or local laws, statutes,
ordinances, regulations or orders or any other claims of any kind or nature,
whether relating to association or employment with the Company or otherwise,
arising in law or equity, and whether known, suspected or unknown, contingent
or noncontingent and however originating or existing. The Company, Xxxxxxx and
[CONFIDENTIAL TREATMENT REQUESTED] expressly waive and release all rights of
whatever nature whatsoever arising under the Constitution of the United States,
the Constitution of the State of Minnesota, Minnesota laws, and all city
ordinances, policies, contracts, promises, and any other source whatsoever.
The Company and Xxxxxxx on the one hand, and [CONFIDENTIAL TREATMENT REQUESTED]
on the other hand, also agree and promise not to institute any civil action or
other legal proceedings of any nature whatsoever to the extent allowed by law
against the other and agree to pay all costs and expenses, including attorneys'
fees, of defending against any such suit brought by the other. The foregoing
releases and covenants not to xxx shall not prevent the parties from enforcing
the provisions of this Agreement at law or in equity. Solely for purposes of
this Section 11, the term "Company" shall include not only the Company but also
Mac USA, and the agents officers employees of the Company and Mac USA.
12. EXCLUSIVE AGREEMENT. This Agreement is the exclusive agreement between
the parties and contains (except to the extent that the provisions of the Plan
are referenced) all the terms of the Agreement between the parties.
13. NON-RELIANCE. Neither party has relied upon any representations or
promises made by the other party or by the agents or attorneys of the other
party.
14. AMENDMENT. The provisions of the Agreement may be not be amended except
by a written agreement executed by all parties hereto.
15. MODIFICATION AND SEVERABILITY. In the event that a court of competent
jurisdiction shall determine that any provision hereof is unenforceable, the
court may modify such provision to the extent it deems appropriate or may
excise the offending provision and enforce the remaining terms of this
Agreement.
16. BINDING EFFECT. This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective heirs, representatives,
successors and assigns.
-8-
17. DRAFTING. The provisions of this Agreement shall not be construed against
the party responsible for the drafting hereof.
18. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Minnesota, exclusive of its conflict
of laws rules.
IN WITNESS WHEREOF, the undersigned have hereunto affixed their
signatures.
-----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]
Tech Squared Inc.
By
---------------------------------------
Xxxx Xxxxxxx, Chief Executive Officer
---------------------------------------------
Xxxx Xxxxxxx (personally, but only as to Sections 7
and 11 hereof)
-9-
NON-RECOURSE SECURED
PROMISSORY NOTE
$________ Minneapolis, Minnesota
___________, ____
FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the order
of Tech Squared, Inc., a Minnesota corporation, at 0000 Xxxx 00xx Xxxxxx,
Xxxxx, Xxxxxxxxx 00000 (the "Company"), or at such other place as may be
designated from time to time by the holder hereof, in lawful money of the
United States of America, the principal sum of [CONFIDENTIAL TREATMENT
REQUESTED], (the "Principal Balance"). On [CONFIDENTIAL TREATMENT REQUESTED]
(which is the date 19 months from the date hereof), the entire Principal
Balance shall be payable in full. No interest shall accrue.
Maker may prepay this Note in whole or in part without premium or penalty.
No prepayment, other than prepayment in full, shall suspend any required
payment under this Note.
This Note is secured by a pledge of [CONFIDENTIAL TREATMENT REQUESTED]
shares of the Company's stock, as set forth in a pledge agreement of even date
herewith (the "Pledge Agreement").
Except with respect to the obligations of the Maker set forth in the
Pledge Agreement, the Maker is issuing this Note without recourse. Maker shall
have no obligation to pay cash pursuant to this Note or the Pledge Agreement
unless Maker elects to obtain release of collateral pursuant to the Pledge
Agreement.
This Note shall be governed by the laws of the State of Minnesota.
Presentment or other demand for payment, notice of dishonor, and protest
are expressly waived.
Dated: _________, ____ By:
-----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]
-10-
PLEDGE AGREEMENT
THIS AGREEMENT, is made and entered into this ______ day of ____________,
____, by [CONFIDENTIAL TREATMENT REQUESTED], an individual residing in
Minnesota ("Pledgor"), in favor of TECH SQUARED, INC., a Minnesota Corporation
("Pledgee").
RECITAL
Pledgor has purchased [CONFIDENTIAL TREATMENT REQUESTED] shares of the
common stock of the Corporation (the "Shares") in exchange for the promise to
pay Pledgee the amount of [CONFIDENTIAL TREATMENT REQUESTED] Dollars
($[CONFIDENTIAL TREATMENT REQUESTED]), evidenced by a non-recourse promissory
note in such amount of even date herewith (the "Note").
NOW, THEREFORE, solely in order to secure payment and performance of the
Note, and any replacement notes or extensions or renewals thereof
(collectively, the "Obligations"), and in consideration of the foregoing
recital and the mutual covenants of the parties hereinafter set forth, the
parties agree as follows:
1.) As collateral for full payment and performance of the Obligations,
Pledgor hereby pledges [CONFIDENTIAL TREATMENT REQUESTED] shares of the
Pledgor's Common Stock (the "Pledged Shares"), and acknowledges that the
Pledged Shares are currently in the possession of Pledgee accompanied by
stock powers duly executed in blank by Pledgor, and Pledgor hereby assigns,
transfers, hypothecates, and sets over to Pledgee all of Pledgor's right,
title, and interest in and to the Pledged Shares (and in and to the
certificates or instruments evidencing the Pledged Shares), which Pledged
Shares shall be held by Pledgee, upon the terms and conditions set forth in
this Agreement.
2.) Pledgor agrees at any time, and from time to time, to execute such
other instruments and to perform such other acts as Pledgee may reasonably
request to establish, maintain and perfect the security interest in the
Pledged Shares conveyed by this Agreement.
3.) Pledgor represents and warrants that:
(a) Pledgor has absolute title to the Pledged Shares, free and clear of
all security interests, liens and encumbrances, except the security
interest granted hereunder, and will defend the Pledged Shares against
all claims or demands of all persons other than the Pledgee;
(b) Pledgor will not sell or otherwise dispose of any Pledged Shares or
any interest therein without the prior written consent of Pledgee; and
-11-
(c) Pledgor will keep the Pledged Shares free and clear of all security
interests, liens, and encumbrances, except the security interest granted
hereunder.
4.) In the event that during the term of this Agreement any share
dividend, reclassification, readjustment or other change is declared or made
in the capital structure of the Company, all new, substituted and additional
shares or other securities issued by reason of original issuance of the
Pledged Shares shall be subject to the terms of this Agreement in the same
manner as, and as a part of, the Pledged Shares.
5.) Each of the following occurrences shall constitute an event of default
under this Agreement (hereinafter referred to as an "Event of Default"):
(a) Pledgor shall fail to pay any or all of the Obligations when due, or
shall fail to observe or perform any covenant or agreement herein,
provided, however, that if such failure is capable of cure, Pledgor
shall have ten (10) days to cure such failure;
(b) Any representations by Pledgor set forth herein shall prove materially
false or misleading; or
(c) Pledgor shall become insolvent.
6.) Unless and until an Event of Default shall have occurred under the
Note or hereunder, Pledgor shall be entitled to vote any and all Pledged
Shares and to give consents, waivers, or ratifications in respect thereof,
provided that no vote shall be cast or any consent, waiver, or ratification
given or any action taken which would violate or be inconsistent with any of
the terms of this Agreement, or which would have the effect of impairing the
position or interest of Pledgee. All such rights of Pledgor to vote and to
give consents, waivers, and ratifications shall cease upon the occurrence of
an Event of Default under the Note or hereunder.
7.) Upon the occurrence of an Event of Default under the Note or
hereunder, Pledgee shall be entitled to exercise all of the rights, powers,
and remedies (whether vested in it pursuant to this Agreement or the Note)
for the protection and enforcement of its rights in respect of the Pledged
Shares, and Pledgee shall be entitled, without limitation, to exercise the
following rights, which Pledgor hereby agrees to be commercially reasonable:
(a) To transfer all or any part of the Pledged Shares into Pledgee's name
or the name of its nominee or nominees;
(b) To vote all or any part of the Pledged Shares (whether or not
transferred into the name of Pledgee) and to give all consents, waivers,
and ratifications in respect of the Pledged Shares and exercise all rights
of actual ownership of the Pledged Shares (Pledgor hereby irrevocably
constitutes and appoints Pledgee the proxy and attorney-in-fact of
Pledgor, with full power of substitution to do so); and
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(c) At any time, or from time to time, to sell, assign, and deliver, or
grant options to purchase, all or any part of the Pledged Shares, or any
interest therein, at any public or private sale to a purchaser(s) who will
agree to take the Pledged Shares for investment and not with a view to
distribution and who will comply with all restrictive legends on any
certificate(s) representing the Pledged Shares and any and all other
restrictions contained in the Corporation's Articles of Incorporation and
Bylaws without demand or performance, advertisement, or notice of
intention to sell or of the time or place of sale or adjournment thereof
or to redeem or otherwise (all of which are hereby waived by Pledgor), for
cash, on credit, or for other property, for immediate or future delivery
without any assumption of credit risk, and for such price or prices and on
such terms as Pledgee in its absolute discretion may determine, provided
that at least ten (10) days' written notice of the time and place of any
such sale shall be given to Pledgor. Pledgor hereby waives and releases
to the fullest extent permitted by law any right or equity of redemption
with respect to the Pledged Shares, whether before or after sale
hereunder, and all rights, if any, of marshalling the Pledged Shares and
any other security for the Obligations or otherwise. At any such sale,
unless prohibited by applicable law, Pledgee or any other may bid for and
purchase all or any part of the Pledged Shares being sold, free from any
right or equity of redemption. Pledgee shall not be liable for failure to
collect or realize upon any or all of the Pledged Shares or for any delay
in so doing nor shall Pledgee be under any obligation to take any action
whatsoever with regard thereto.
8.) Each right, power, and remedy of Pledgee provided for in this
Agreement or the Note, or now or hereafter existing at law or in equity or by
statute shall be cumulative and concurrent and shall be in addition to every
other such right, power, or remedy. The exercise or beginning of the
exercise by Pledgee of one or more of the rights and powers or remedies
provided for in this Agreement, or the Note, or now or hereafter existing at
law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by Pledgee of all such other rights, powers,
or remedies, and no failure or delay on the part of Pledgee to exercise any
such right, power, or remedy shall operate as a waiver thereof.
9.) All monies collected by Pledgee upon any sale or other disposition
of the Pledged Shares, together with all other monies received by Pledgee
hereunder, shall be applied first to the payment of all costs and expenses
incurred by Pledgee in connection with such sale, the delivery of the Pledged
Shares and the collection of any such monies (including, without limitation,
attorneys' fees, and expenses), and the balance of such monies shall be held
by Pledgee and applied by it to satisfy the Obligations.
10.) If and whenever Pledgor shall have paid any portion of the Note,
Pledgor shall, upon five-days written request, be entitled to release from
the terms of this Agreement of that number of Pledged Shares determined by
dividing the amount of the Note which has been paid by the original amount of
the Note and multiplying the result thereof by the original number of Pledged
Shares. Upon each such partial release, Pledgee shall duly assign, transfer,
and deliver to Pledgor (without recourse and without any representation or
warranty) such of the Pledged
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Shares as determined under the prior sentence as may be in the possession of
Pledgee and not previously sold or otherwise applied or released pursuant to
this Agreement. When all of the Obligations have been paid or performed in
full, this Agreement shall terminate, and Pledgee, at the request and expense
of Pledgor, shall execute and deliver to Pledgor a proper instrument or
instruments acknowledging the satisfaction and termination of this Agreement,
and shall duly assign, transfer, and deliver to Pledgor (without recourse and
without any representation or warranty) such of the Pledged Shares as may be
in the possession of Pledgee and not previously sold or otherwise applied or
released pursuant to this Agreement.
11.) Any notices required under this Agreement shall be sufficient if
in writing and sent by certified mail, return receipt requested, to the other
party at the address as set forth below:
PLEDGOR: [CONFIDENTIAL TREATMENT REQUESTED]
PLEDGEE: Tech Squared, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxxx 00000
12.) This Agreement shall be binding upon the successors and assigns of
Pledgor and shall inure to the benefit of and be enforceable by Pledgee and
its successors and assigns. This Agreement may be changed, waived,
discharged, or terminated only by an instrument in writing signed by the
party against whom enforcement of such change, waiver, discharge, or
termination is sought. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Minnesota. In the
event that any provision of this Agreement shall prove to be invalid or
unenforceable, such provision shall be deemed to be severable from the other
provisions of this Agreement which shall remain binding on all parties hereto.
IN WITNESS WHEREOF, Pledgor has caused this Agreement to be executed as of
the date first above written.
PLEDGOR:
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[CONFIDENTIAL TREATMENT REQUESTED]
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