RESTRUCTURING AGREEMENT
Exhibit 4.6
This Restructuring Agreement (this “Agreement”), dated September 20, 2006, is by and between DeMarseCo, Inc., a Delaware corporation (“DI”), DeMarseCo Holdings, Inc., a Delaware corporation (“DII”), Austin Ventures VIII, L.P., a Delaware limited partnership (“AV”), Xxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxx XxXxxxx and Xxxxx Xxxxx.
RECITALS
WHEREAS, DI is party to that certain Note Purchase Agreement, dated December 28, 2005, by and between DI and AV (the “Original Purchase Agreement”), pursuant to which DI can sell and AV can subscribe for and purchase up to $1,500,000 aggregate principal amount of DI’s Convertible Promissory Notes;
WHEREAS, in accordance with the Original Purchase Agreement, DI sold to AV and AV subscribed for and purchased that certain Convertible Promissory Note of DI, dated December 28, 2005 in the principal amount of $500,000 (the “Original Note”) and on September 15, 2006, DI sold to AV and AV subscribed for and purchased that certain Convertible Promissory Note of DI in the principal amount of $500,000 (the “Second Note”);
WHEREAS, Xxxxxx Xxxxxx purchased 202,548 shares of common stock, par value $0.001 per share, of DI (“DI Common Stock”) pursuant to that certain Founder Stock Purchase Agreement, dated December 28, 2005, by and between Xxxxxx Xxxxxx and DI (the “XX Xxxxxx Purchase Agreement”);
WHEREAS, Xxxxx Xxxx purchased 202,548 shares of DI Common Stock pursuant to that certain Founder Stock Purchase Agreement, dated December 28, 2005, by and between Xxxxx Xxxx and DI (the “DI Lack Purchase Agreement”);
WHEREAS, Xxxxxxxxx XxXxxxx purchased 586,636 shares of DI Common Stock pursuant to that certain Founder Stock Purchase Agreement, dated December 28, 2005, by and between Xxxxxxxxx XxXxxxx and DI (the “XX XxXxxxx Purchase Agreement”);
WHEREAS, Xxxxx Xxxxx purchased 8,267 shares of DI Common Stock pursuant to that certain Founder Stock Purchase Agreement, dated December 28, 2005, by and between Xxxxx Xxxxx and DI (the “XX Xxxxx Purchase Agreement”);
WHEREAS, DI has formed a wholly-owned subsidiary, DII, and is the holder of 1,000,000 shares of common stock, par value $0.001 per share, of DII (“DII Common Stock”);
WHEREAS, DI has identified a proposed acquisition opportunity as described in that certain Letter of Intent and that certain Exclusivity Letter, each dated August 25, 2006, each by and between Austin Ventures, L.P., DI and XxxxxxXxxx.xxx, L.P. (the “Credit Card Opportunity”) that are of interest to DII;
WHEREAS, DII desires to pursue the Credit Card Opportunity, which is the property of DI, and DI desires to assign the Credit Card Opportunity to DII in accordance with this
Agreement and in connection with such assignment, DI and DII will fairly divide DI’s expenses incurred to date;
WHEREAS, AV, DI, DII, Xxxxxxxxx XxXxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxx and Xxxxx Xxxxx desire that DII pursue the Credit Card Opportunity as a fully separate entity in which Xxxxxxxxx XxXxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxx and Xxxxx Xxxxx are the stockholders;
WHEREAS, each of the following transactions shall occur pursuant to or in connection with this Agreement (such transactions, collectively, the “Restructuring Transactions”):
1. AV will approve the Restructuring Transactions in accordance with Section 4.9 of the Original Purchase Agreement;
2. DI will assign the Credit Card Opportunity and related business plans and/or ideas to DII;
3. in order to fairly divide the expenses incurred by DI to date, DI will assign to DII, and DII will assume, $250,000 plus accrued but unpaid interest of the Original Note and $250,000 plus accrued but unpaid interest of the Second Note and DI will transfer $150,000 in immediately available funds to DII by:
(a) DII and AV will enter into a Note Purchase Agreement, in the form attached hereto as Exhibit A (the “DII Purchase Agreement”), pursuant to which DI can sell and AV can subscribe for and purchase up to $750,000 aggregate principal amount of Convertible Promissory Notes of DII;
(b) AV returning the Original Note and the Second Note to DI for cancellation and replacement;
(c) DII issuing to AV (i) a Convertible Promissory Note under the DII Purchase Agreement in the principal amount of $250,000, in the form attached hereto as Exhibit B, to evidence the assumption of the $250,000 principal amount of the Original Note (the “First DII Note”) and (ii) a Convertible Promissory Note under the DII Purchase Agreement in the principal amount of $250,000, in the form attached hereto as Exhibit C, to evidence the assumption of the $250,000 principal amount of the Second Note (the “Second DII Note”);
(d) DI and AV will amend and restate the Original Purchase Agreement, in the form attached hereto as Exhibit D (the “Amended and Restated Purchase Agreement”), pursuant to which DI can sell and AV can subscribe for and purchase up to $750,000 aggregate principal amount of DI’s Convertible Promissory Notes;
(e) DI issuing to AV (i) an amended and restated Convertible Promissory Note under the Amended and Restated Purchase Agreement in the principal amount of $250,000, in the form attached hereto as Exhibit E, as the replacement note for the Original Note (the “Amended and Restated Original DI Note”) and (ii) an amended and restated Convertible Promissory Note under
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the Amended and Restated Purchase Agreement in the principal amount of $250,000, in the form attached hereto as Exhibit F, as the replacement note for the Second Note (the “Amended and Restated Second DI Note”);
(f) DI will transfer $150,000 in immediately available funds to DII; and
4. Xxxxxxxxx XxXxxxx’x employment will be transferred from DI to DII and in connection with the transfer:
(a) Xxxxxxxxx XxXxxxx and DII will enter into a Stock Restriction Agreement, in the form attached hereto as Exhibit G (the “DII XxXxxxx Restriction Agreement”), and in accordance with this Agreement and subject to the DII XxXxxxx Restriction Agreement: (i) DI will release 503,963 shares of Xxxxxxxxx XxXxxxx’x DI Common Stock from escrow under the XX XxXxxxx Purchase Agreement, (ii) Xxxxxxxxx XxXxxxx will surrender such 503,963 shares of her DI Common Stock to DI, such shares to be retired by DI, (iii) DI will waive the transfer restrictions contained in the XX XxXxxxx Purchase Agreement as to the transfer of such DI Common Stock and (iv) in exchange for such shares of DI Common Stock, DI will transfer 577,779 shares of DII Common Stock owned by DI to Xxxxxxxxx XxXxxxx; and
(b) Xxxxxxxxx XxXxxxx and DII will enter into a Proprietary Information and Inventions Assignment Agreement, in the form attached hereto as Exhibit H (the “DII XxXxxxx XXXX Agreement”);
5. following the transfers of shares of DI Common Stock and DII Common
Stock described in subparagraph 4(a) and in accordance with resolutions
of the Board of Directors of DI adopted on
September 19, 2006 and attached hereto as Exhibit I, DI will distribute
in the form of a dividend the remaining 422,221 shares of DII Common Stock
owned by DI to the holders of the issued and outstanding shares of DI Common
Stock pro rata in accordance with such stockholder’s ownership of DI Common
Stock, resulting in Xxxxxx Xxxxxx receiving 172,407 shares of DII Common Stock,
Xxxxx Xxxx receiving 172,407 shares of DII Common Stock, Xxxxxxxxx XxXxxxx
receiving 70,370 shares of DII Common Stock and Xxxxx Xxxxx receiving 7,037
shares of DII Common Stock, with:
(a) (i) Xxxxxx Xxxxxx’x receipt of the 172,407 shares of DII Common Stock being conditioned upon (A) Xxxxxx Xxxxxx and DII entering into a Stock Restriction Agreement, in the form attached hereto as Exhibit J (the “DII Xxxxxx Restriction Agreement”), and (B) Xxxxxx Xxxxxx and DII entering into a Proprietary Information and Inventions Assignment Agreement, in the form attached hereto as Exhibit K (the “DII Xxxxxx XXXX Agreement”), and (ii) such 172,407 shares being subject to the DII Xxxxxx Restriction Agreement;
(b) (i) Xxxxx Xxxx’x receipt of the 172,407 shares of DII Common Stock being conditioned upon (B) Xxxxx Xxxx and DII entering into a Stock Restriction Agreement, in the form attached hereto as Exhibit L (the “DII Lack
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Restriction Agreement”), and (C) Xxxxx Xxxx and DII entering into a Proprietary Information and Inventions Assignment Agreement, in the form attached hereto as Exhibit M (the “DII Lack PIIA Agreement”), and (ii) such 172,407 shares being subject to the DII Lack Restriction Agreement;
(c) (i) Xxxxxxxxx XxXxxxx’x receipt of the 70,370 shares of DII Common Stock being conditioned upon (A) Xxxxxxxxx XxXxxxx’x and DII’s entry into the DII XxXxxxx Restriction Agreement and (B) Xxxxxxxxx XxXxxxx and DII entering into the DII XxXxxxx XXXX Agreement, and (ii) such 70,370 shares being subject to the DII XxXxxxx Restriction Agreement;
(d) (i) Xxxxx Xxxxx’x receipt of the 7,037 shares of DII Common Stock being conditioned (A) upon Xxxxx Xxxxx and DII entering into a Stock Restriction Agreement, in the form attached hereto as Exhibit N (the “DII Xxxxx Restriction Agreement”), and (B) Xxxxx Xxxxx and DII entering into a Proprietary Information and Inventions Assignment Agreement, in the form attached hereto as Exhibit O (the “DII Xxxxx XXXX Agreement”), and (ii) such 7,037 shares being subject to the DII Xxxxx Restriction Agreement; and
(e) DI will waive (i) the operation of Section 4.2 of the XX Xxxxxx Purchase Agreement as to the shares of DII Common Stock distributed in the form of a dividend to Xxxxxx Xxxxxx, (ii) the operation of Section 4.2 of the DI Lack Purchase Agreement as to the shares of DII Common Stock distributed in the form of a dividend to Xxxxx Xxxx, (iii) the operation of Section 4.2 of the XX XxXxxxx Purchase Agreement as to the shares of DII Common Stock distributed in the form of a dividend to Xxxxxxxxx XxXxxxx, and (iv) the operation of Section 4.2 of the XX Xxxxx Purchase Agreement as to the shares of DII Common Stock distributed in the form of a dividend to Xxxxx Xxxxx;
6. subsequent to the surrender of shares of DI Common Stock by Xxxxxxxxx XxXxxxx and the retirement of such shares by DI as described in subparagraph 4(a), DI will do a 2.0159814 for 1 stock split of the issued and outstanding DI Common Stock in accordance with resolutions of the Board of Directors of DI adopted on September 19, 2006 and attached hereto as Exhibit P, resulting in Xxxxxx Xxxxxx holding 408,333 shares of DI Common Stock, Xxxxx Xxxx holding 408,333 shares of DI Common Stock, Xxxxxxxxx XxXxxxx holding 166,667 shares of DI Common Stock and Xxxxx Xxxxx holding 16,667 shares of DI Common Stock;
7. DI and Xxxxxx Xxxxxx will amend the XX Xxxxxx Purchase Agreement, in the form attached hereto as Exhibit O (the “First Amendment to XX Xxxxxx Purchase Agreement”), in order to, among other things, change the vesting provisions;
8. DI and Xxxxx Xxxx will amend the DI Lack Purchase Agreement, in the form attached hereto as Exhibit R (the “First Amendment to DI Lack Purchase Agreement”), in order to, among other things, change the vesting provisions;
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9. DI and Xxxxxxxxx XxXxxxx will amend the XX XxXxxxx Purchase Agreement, in the form attached hereto as Exhibit S (the “First Amendment to XX XxXxxxx Purchase Agreement”), in order to, among other things, change the vesting provisions; and
10. DI and Xxxxx Xxxxx will amend the XX Xxxxx Purchase Agreement, in the form attached hereto as Exhibit T (the “First Amendment to XX Xxxxx Purchase Agreement”), in order to, among other things, change the vesting provisions.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing premises for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and the covenants and agreements in this Agreement, the parties hereto hereby agree as follows:
Section 1. Approval of the Restructuring Transactions. Pursuant to Section 4.9 of the Original Purchase Agreement, AV has the right to approve or disapprove of a Business Transaction (as defined in the Original Purchase Agreement) involving DI. Pursuant to that right, AV hereby approves of the Restructuring Transactions in all respects.
Section 2. Assignment of Credit Card Opportunity. DI hereby sells, assigns, transfers, conveys and delivers to DII all of its right, title and interest in, to and under the Credit Card Opportunity, and DII hereby accepts all of the right, title and interest of DI in, to and under the Credit Card Opportunity.
Section 3. Note Purchase Agreements; Assumption of Debt.
3.1 Assumption of Debt of DI by DII. Concurrently with this Agreement:
(a) DII and AV have entered into and delivered the DII Purchase Agreement;
(b) AV has delivered the Original Note and the Second Note to DI for cancellation and replacement as described herein;
(c) (i) DII hereby assumes and undertakes to pay, discharge and perform all obligations, debts and liabilities of DI relating to $250,000 plus accrued but unpaid interest of the Original Note, (ii) AV hereby consents to such assumption and undertaking, and (iii) DII has issued and delivered to AV the First DII Note under the DII Purchase Agreement in principal amount of $250,000 plus accrued but unpaid interest due on such amount under the Original Note, which note evidences such assumption and undertaking and has been accepted by AV in full satisfaction of $250,000 principal amount of the Original Note;
(d) (i) DII hereby assumes and undertakes to pay, discharge and perform all obligations, debts and liabilities of DI relating to $250,000 plus accrued but unpaid interest of the Second Note, (ii) AV hereby consents to such assumption and undertaking, and (iii) DII has issued and delivered to AV the
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Second DII Note under the DII Purchase Agreement in principal amount of $250,000 plus accrued but unpaid interest due on such amount under the Second Note, which note evidences such assumption and undertaking and has been accepted by AV in full satisfaction of $250,000 principal amount of the Second Note;
(e) Concurrently with this Agreement, DI and AV have entered into and delivered the Amended and Restated Purchase Agreement;
(f) DI has issued and delivered to AV the Amended and Restated DI Original Note under the Amended and Restated Purchase Agreement, in replacement of the Original Note, in principal amount of $250,000;
(g) DI has issued and delivered to AV the Amended and Restated DI Second Note under the Amended and Restated Purchase Agreement, in replacement of the Second Note, in principal amount of $250,000; and
(h) DI has transferred $150,000 in immediately available funds to DII;
(i) DI and DII each hereby represent, agree and confirm that as a result of the transactions contemplated by this Section 3.1, DI and DII have fairly divided DI’s expenses incurred to date and that upon consummation of this division of expenses, there will be no obligations remaining between DI and DII other than as contemplated in this Agreement.
Section 4. Transfer of Employment; Share Exchange.
4.1 Transfer of Employment. (a) Xxxxxxxxx XxXxxxx’x employment by DI is hereby transferred to DII, (b) DII hereby accepts such transfer and (c) Xxxxxxxxx XxXxxxx hereby consents to and approves of the transfer of her employment from DI to DII and accepts employment with DII, and as a result, as of the execution of this Agreement, Xxxxxxxxx XxXxxxx is employed by DII on the same terms and conditions as were in place between Xxxxxxxxx XxXxxxx and DI immediately prior to the execution of this Agreement.
4.2 Share Exchange. In connection with the transfer of Xxxxxxxxx XxXxxxx’x employment and concurrently with this Agreement:
(a) Xxxxxxxxx XxXxxxx and DII have entered into and delivered the DII XxXxxxx Restriction Agreement and in accordance with this Agreement and subject to the DII XxXxxxx Restriction Agreement:
(i) DI hereby releases 503,963 shares of Xxxxxxxxx XxXxxxx’x DI Common Stock from escrow under the XX XxXxxxx Purchase Agreement;
(ii) Xxxxxxxxx XxXxxxx hereby surrenders and delivers such 503,963 shares of her DI Common Stock to DI, which shares are retired by DI;
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(iii) DI hereby waives the transfer restrictions on such shares of DI Common Stock contained in the XX XxXxxxx Purchase Agreement with respect to, and in all other ways consents to, such transfer; and
(iv) In exchange for such shares of DI Common Stock, DI hereby transfers and delivers to Xxxxxxxxx XxXxxxx, subject to the DII XxXxxxx Restriction Agreement, 577,779 shares of DII Common Stock owned by DI; and
(b) Xxxxxxxxx XxXxxxx and DII have entered into and delivered the DII XxXxxxx XXXX Agreement.
Section 5. Dividend of DII Common Stock; Waivers.
5.1 Dividend of DII Common Stock. Immediately following the completion of the transactions described in Section 4.2, DI will cause to occur the distribution in the form of a dividend of the remaining 422,221 shares of DII Common Stock owned by DI to the holders of the issued and outstanding shares of DI Common Stock pro rata in accordance with each stockholder’s ownership of DI Common Stock. As a result of such distribution and subject to the conditions described in Sections 5.1(a), 5.1(b), 5.1(c), and 5.1(d), Xxxxxx Xxxxxx will receive 172,407 shares of DII Common Stock, Xxxxx Xxxx will receive 172,407 shares of DII Common Stock, Xxxxxxxxx XxXxxxx will receive 70,370 shares of DII Common Stock and Xxxxx Xxxxx will receive 7,037 shares of DII Common Stock.
(a) (i) Xxxxxx Xxxxxx’x receipt of the 172,407 shares of DII Common Stock as described in Section 5.1 is conditioned upon (A) Xxxxxx Xxxxxx and DII entering into the DII Xxxxxx Restriction Agreement, which such parties have entered into and delivered concurrently with this Agreement, and (B) Xxxxxx Xxxxxx and DII entering into the DII Xxxxxx XXXX Agreement, which such parties have entered into and delivered concurrently with this Agreement, and (ii) such 172,407 shares of DII Common Stock upon distribution by DI will be subject to the DII Xxxxxx Restriction Agreement.
(b) (i) Xxxxx Xxxx’x receipt of the 172,407 shares of DII Common Stock as described in Section 5.1 is conditioned upon (A) Xxxxx Xxxx and DII entering into the DII Lack Restriction Agreement, which such parties have entered into and delivered concurrently with this Agreement, and (B) Xxxxx Xxxx and DII entering into the DII Lack PIIA Agreement, which such parties have entered into and delivered concurrently with this Agreement, and (ii) such 172,407 shares of DII Common Stock upon distribution by DI will be subject to the DII Lack Restriction Agreement.
(c) (i) Xxxxxxxxx XxXxxxx’x receipt of the 70,370 shares of DII Common Stock as described in Section 5.1 is conditioned upon (A) Xxxxxxxxx XxXxxxx and DII entering into the DII XxXxxxx Restriction Agreement, which such parties have entered into and delivered concurrently with this Agreement, and (B) Xxxxxxxxx XxXxxxx and DII entering into the DII XxXxxxx XXXX
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Agreement, which such parties have entered into and delivered concurrently with this Agreement, and (ii) such 70,370 shares of DII Common Stock upon distribution by DI will be subject to the DII XxXxxxx Restriction Agreement.
(d) (i) Xxxxx Xxxxx’x receipt of the 7,037 shares of DII Common Stock as described in Section 5.1 is conditioned upon (A) Xxxxx Xxxxx and DII entering into the DII Xxxxx Restriction Agreement, which such parties have entered into and delivered concurrently with this Agreement, and (B) Xxxxx Xxxxx and DII entering into the DII Xxxxx XXXX Agreement, which such parties have entered into and delivered concurrently with this Agreement, and (ii) such 7,037 shares of DII Common Stock upon distribution by DI will be subject to the DII Xxxxx Restriction Agreement.
5.2 Waiver as to Dividend to Xxxxxx Xxxxxx. DI hereby waives in all respects the operation of Section 4.2 of the XX Xxxxxx Purchase Agreement as to the 172,407 shares of DII Common Stock distributed in the form of a dividend to Xxxxxx Xxxxxx as described in Section 5.1.
5.3 Waiver as to Dividend to Xxxxx Xxxx. DI hereby waives in all respects the operation of Section 4.2 of the DI Lack Purchase Agreement as to the 172,407 shares of DII Common Stock distributed in the form of a dividend to Xxxxx Xxxx as described in Section 5.1.
5.4 Waiver as to Dividend to Xxxxxxxxx XxXxxxx. DI hereby waives in all respects the operation of Section 4.2 of the XX XxXxxxx Purchase Agreement as to the 70,370 shares of DII Common Stock distributed in the form of a dividend to Xxxxxxxxx XxXxxxx as described in Section 5.1.
5.5 Waiver as to Dividend to Xxxxx Xxxxx. DI hereby waives in all respects the operation of Section 4.2 of the XX Xxxxx Purchase Agreement as to the 7,037 shares of DII Common Stock distributed in the form of a dividend to Xxxxx Xxxxx as described in Section 5.1.
Section 6. Stock Split. Following the completion of the transactions described in Sections 4.2 and 5.1, DI shall complete a 2.0159814 for 1 stock split of the issued and outstanding shares of DI Common Stock by filing with the Secretary of State of the State of Delaware the Certificate of Amendment to Certificate of Incorporation of DI, in the form attached hereto as Exhibit U. As a result of such stock split:
6.1 Xxxxxx Xxxxxx will hold 408,333 shares of DI Common Stock. Following such stock split, Xxxxxx Xxxxxx and DI hereby agree that (a) DI will release the certificate representing the pre-split shares of Xxxxxx Xxxxxx’x DI Common Stock from escrow under the XX Xxxxxx Purchase Agreement, (b) Xxxxxx Xxxxxx will surrender and deliver such certificate to DI; (c) DI shall, upon such surrender and delivery, issue a new certificate representing the 408,333 shares of DI Common Stock to which Xxxxxx Xxxxxx is entitled as a result of the stock split and (d) Xxxxxx Xxxxxx will deposit such new certificate representing the 408,333 shares of DI Common Stock with the Company in accordance with Section 4.1 of the XX Xxxxxx Purchase Agreement.
6.2 Xxxxx Xxxx will hold 408,333 shares of DI Common Stock. Following such stock split, Xxxxx Xxxx and DI hereby agree that (a) DI will release the certificate
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representing the pre-split shares of Xxxxx Xxxx’x DI Common Stock from escrow under the DI Lack Purchase Agreement, (b) Xxxxx Xxxx will surrender and deliver such certificate to DI; (c) DI shall, upon such surrender and delivery, issue a new certificate representing the 408,333 shares of DI Common Stock to which Xxxxx Xxxx is entitled as a result of the stock split and (d) Xxxxx Xxxx will deposit such new certificate representing the 408,333 shares of DI Common Stock with the Company in accordance with Section 4.1 of the DI Lack Purchase Agreement.
6.3 Xxxxxxxxx XxXxxxx will hold 166,667 shares of DI Common Stock. Following such stock split, Xxxxxxxxx XxXxxxx and DI hereby agree that (a) DI will release the certificate representing the pre-split shares of Xxxxxxxxx XxXxxxx’x DI Common Stock from escrow under the XX XxXxxxx Purchase Agreement, (b) Xxxxxxxxx XxXxxxx will surrender and deliver such certificate to DI; (c) DI shall, upon such surrender and delivery, issue a new certificate representing the 166,667 shares of DI Common Stock to which Xxxxxxxxx XxXxxxx is entitled as a result of the stock split and (d) Xxxxxxxxx XxXxxxx will deposit such new certificate representing the 166,667 shares of DI Common Stock with the Company in accordance with Section 4.1 of the XX XxXxxxx Purchase Agreement.
6.4 Xxxxx Xxxxx will hold 16,667 shares of DI Common Stock. Following such stock split, Xxxxx Xxxxx and DI hereby agree that (a) DI will release the certificate representing the pre-split shares of Xxxxx Xxxxx’x DI Common Stock from escrow under the XX Xxxxx Purchase Agreement, (b) Xxxxx Xxxxx will surrender and deliver such certificate to DI; (c) DI shall, upon such surrender and delivery, issue a new certificate representing the 16,667 shares of DI Common Stock to which Xxxxx Xxxxx is entitled as a result of the stock split and (d) Xxxxx Xxxxx will deposit such new certificate representing the 16,667 shares of DI Common Stock with the Company in accordance with Section 4.1 of the XX Xxxxx Purchase Agreement.
Section 7. First Amendments to DI Purchase Agreements.
7.1 First Amendment to XX Xxxxxx Purchase Agreement. Concurrently with this Agreement, DI and Xxxxxx Xxxxxx have entered into and delivered the First Amendment to XX Xxxxxx Purchase Agreement.
7.2 First Amendment to DI Lack Purchase Agreement. Concurrently with this Agreement, DI and Xxxxx Xxxx have entered into and delivered the First Amendment to DI Lack Purchase Agreement.
7.3 First Amendment to XX XxXxxxx Purchase Agreement. Concurrently with this Agreement, DI and Xxxxxxxxx XxXxxxx have entered into and delivered the First Amendment to XX XxXxxxx Purchase Agreement.
7.4 First Amendment to XX Xxxxx Purchase Agreement. Concurrently with this Agreement, DI and Xxxxx Xxxxx have entered into and delivered the First Amendment to XX Xxxxx Purchase Agreement.
Section 8. Further Assurances. From time to time after the date hereof, and without further consideration, each of the parties to this Agreement shall execute, acknowledge and deliver all such additional instruments, certificates, notices and other documents, and will do all
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such other acts and things, all in accordance with applicable law, as may be necessary or appropriate to more fully and effectively carry out the purposes and intent of this Agreement.
Section 9. Waiver of Conflicts. Each party to this Agreement acknowledges that Xxxxxx & Xxxxxx LLP, counsel for DI, has in the past and may continue to perform legal services for AV in matters unrelated to the transactions described in this Agreement, including the representation of AV in venture capital financings and other matters. Accordingly, each party to this Agreement (1) acknowledges that they have had an opportunity to ask for information relevant to this disclosure; (2) acknowledges that Xxxxxx & Xxxxxx LLP represented DI in the transactions contemplated by this Agreement and has not represented AV or any of the other parties to this Agreement in connection with such transactions; and (3) gives its informed consent to Xxxxxx & Xxxxx LLP’s representation of AV in such unrelated matters and to Xxxxxx & Xxxxxx LLP’s representation of DI in connection with this Agreement and the transactions contemplated by this Agreement.
Section 10. Miscellaneous.
10.1 Headings; References; Interpretation. All section headings in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any of the provisions hereof. The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole, including all exhibits attached hereto, and not to any particular provision of this Agreement. All references herein to sections and exhibits shall, unless the context requires a different construction, be deemed to be references to the sections and exhibits of this Agreement, respectively, and all such exhibits attached hereto are hereby incorporated herein and made a part hereof for all purposes. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. The use herein of the word “including” following any general statement, term or matter shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation,” “but not limited to,” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter.
10.2 Successors and Assigns. The Agreement shall be binding upon and inure to the benefit of the parties signatory hereto and their respective successors and assigns.
10.3 No Third Party Rights. The provisions of this Agreement are intended to bind the parties signatory hereto as to each other and are not intended to and do not create rights in any other person or confer upon any other person any benefits, rights or remedies and no person is or is intended to be a third party beneficiary of any of the provisions of this Agreement.
10.4 Counterparts. This Agreement may be executed in any number of counterparts, all of which together shall constitute one agreement binding on the parties hereto.
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10.5 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas applicable to contracts made and to be performed wholly within such state without giving effect to conflict of law principles thereof, except to the extent that it is mandatory that the law of some other jurisdiction, shall apply.
10.6 Severability. If any of the provisions of this Agreement are held by any court of competent jurisdiction to contravene, or to be invalid under, the laws of any political body having jurisdiction over the subject matter hereof, such contravention or invalidity shall not invalidate the entire Agreement. Instead, this Agreement shall be construed as if it did not contain the particular provision or provisions held to be invalid, and an equitable adjustment shall be made and necessary provision added so as to give effect to the intention of the parties as expressed in this Agreement at the time of execution of this Agreement.
10.7 Amendment or Modification. This Agreement may be amended or modified from time to time only by the written agreement of all the parties hereto.
10.8 Integration. This Agreement, together with the other agreements, documents and certificates described herein of even date herewith or to be entered into by and among any of the parties to this Agreement, supersedes all previous understandings or agreements between the parties, whether oral or written, with respect to its subject matter. This document is an integrated agreement which contains the entire understanding of the parties. No understanding, representation, promise or agreement, whether oral or written is intended to be or shall be included in or form part of this Agreement unless it is contained in a written amendment hereto executed by the parties hereto after the date of this Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first written above.
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DEMARSECO, INC. |
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Xxxxxxxxx XxXxxxx |
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DEMARSECO HOLDINGS, INC. |
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Xxxxxxxxx XxXxxxx |
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AUSTIN VENTURES VIII, L.P. |
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A V Partners VIII, L.P., |
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General Partner |
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Signature Page to Restructuring Agreement
