JOINDER AGREEMENT
Exhibit
10.2
THIS JOINDER TO SECURITY AGREEMENT AND STOCK PLEDGE AGREEMENT (this “Joinder”) is
executed as of August 28, 2007 by SILICON MOUNTAIN HOLDINGS, INC., a Colorado corporation (the
“Joining Party”), and delivered to Laurus Master Fund, Ltd. (“LMF”), Valens U.S. SPV I, LLC
(“Valens U.S.”), Valens Offshore SPV I, Ltd. (“Valens Offshore”) and PSource Structured Debt
Limited (“PSource” and, together with LMF, Valens U.S. and Valens Offshore, the “Purchasers” and
each, a “Purchaser”). Except as otherwise defined herein, terms used herein and defined in the
Security Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H:
WHEREAS, SILICON MOUNTAIN MEMORY, INCORPORATED, a Colorado corporation (the “Company”),
certain Subsidiaries of the Company and LMF, have entered into a Security and Purchase Agreement,
made as of September 25, 2006 (as amended, restated, modified and/or supplemented from time to
time, the “Security Agreement”), providing for the issuance of the Notes and the Warrant
and the execution of the Ancillary Agreement referred to in the Security Agreement;
WHEREAS, the Joining Party is the parent company of the Company and desires, or is required
pursuant to the provisions of the Security Agreement, to become the “Parent” under the Security
Agreement and a “Pledgor” under the Stock Pledge Agreement;
NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to the Joining
Party, the receipt and sufficiency of which are hereby acknowledged, the Joining Party hereby makes
the following representations and warranties to each Purchaser and hereby covenants and agrees with
each Purchaser as follows:
NOW, THEREFORE, the Joining Party agrees as follows:
1. By this Joinder, the Joining Party becomes (i) the “Parent” for all purposes under the
Security Agreement, as contemplated in the definition of “Public Company” and (ii) a “Pledgor” for
all purposes under the Stock Pledge Agreement.
2. The Joining Party agrees that, upon its execution hereof, it will become the “Parent”
under, and as defined in, the Security Agreement, and will be bound by all terms, conditions and
duties applicable to the Parent under the Security Agreement. Without limitation of the foregoing
and in furtherance thereof, as security for the due and punctual payment of the Obligations (as in
the Security Agreement), the Joining Party hereby pledges, hypothecates, assigns, transfers, sets
over and delivers to each Purchaser and grants to each Purchaser a security interest in all
Collateral (as defined in the Security Agreement), if any, now owned or, to the extent provided in
the Security Agreement, hereafter acquired by it.
3. The Joining Party agrees that, upon its execution hereof, it will become a Pledgor under,
and as defined in, the Stock Pledge Agreement, and will be bound by all terms,
conditions and duties applicable to a Pledgor under the Stock Pledge Agreement. Without
limitation of the foregoing and in furtherance thereof, as security for the due and punctual
payment of the Indebtedness (as defined in the Stock Pledge Agreement), the Joining Party hereby
pledges, hypothecates, assigns, transfers, sets over and delivers to each Purchaser and grants to
each Purchaser a security interest in all Collateral (as defined in the Stock Pledge Agreement, as
amended hereby), if any, now owned or, to the extent provided in the Stock Pledge Agreement,
hereafter acquired by it.
4. In connection with the grant by the Joining Party, pursuant to paragraphs 2 and 3 above,
of a security interest in all of its right, title and interest in the Collateral (as defined in the
Stock Pledge Agreement) in favor of each Purchaser, the Joining Party (i) agrees to deliver to the
Purchasers, together with the delivery of this Joinder, each of the items specified in Section 3 of
the Stock Pledge Agreement, (ii) agrees to execute (if necessary) and deliver to each Purchaser
such financing statements, in form acceptable to such Purchaser, as such Purchaser may reasonably
request or as are necessary or desirable in the opinion of such Purchaser to establish and maintain
a valid, enforceable, first priority perfected security interest in the Collateral (as defined in
the Security Agreement and the Stock Pledge Agreement) owned by the Joining Party, and (iii)
authorizes each Purchaser to file any such financing statements without the signature of the
Joining Party where permitted by law (such authorization includes a description of the Collateral
as “all assets and all personal property, whether now owned and/or hereafter acquired” of the
Joining Party (or any substantially similar variation thereof)).
5. Without limiting the foregoing, the Joining Party hereby makes and undertakes, as the case
may be, each covenant, representation and warranty made by, and as, a Pledgor pursuant to the Stock
Pledge Agreement and the Parent pursuant to the Security Agreement, in each case, as of the date
hereof (except to the extent any such representation or warranty relates solely to an earlier date
in which case such representation and warranty shall be true and correct as of such earlier date),
and agrees to be bound by all covenants, agreements and obligations of a Pledgor pursuant to the
Stock Pledge Agreement, the Parent pursuant to the Security Agreement, and all other Ancillary
Agreements to which it is or becomes a party.
6. Schedule A to the Stock Pledge Agreement is hereby amended by supplementing such Schedule
with the information for the Joining Party contained on Schedule A attached hereto as Annex I.
7. This Joinder shall be binding upon the parties hereto and their respective successors and
permitted assigns and shall inure to the benefit of and be enforceable by each of the parties
hereto and its successors and permitted assigns, provided, however, the Joining
Party may not assign any of its rights, obligations or interest hereunder or under the the Security
Agreement or any Ancillary Agreement without the prior written consent of the Purchasers or as
otherwise permitted by the Security Agreement or any Ancillary Agreement. THIS JOINDER SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Joinder may be executed in any number of counterparts, each of which shall be an original, but all
of which shall constitute one instrument. In the event that any provision of this Joinder shall
prove to be invalid or unenforceable, such provision shall be deemed to be severable from the other
provisions of this Joinder which shall remain binding on all parties hereto.
8. From and after the execution and delivery hereof by the parties hereto, this Joinder shall
constitute an “Ancillary Agreement” for all purposes of the Security Agreement and the Ancillary
Agreements.
9. The effective date of this Joinder is August 28, 2007.
* * *
IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be duly executed as of the
date first above written.
| SILICON MOUNTAIN HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxxx (Tré) X. Xxxxx III Xxxxx | |||
| Name: Xxxxxxx (Tré) X. Xxxxx III | ||||
| Title: CEO | ||||
| Acknowledged and Agreed to by: | ||||
| LAURUS MASTER FUND, LTD. | ||||
| By: | /s/ Xxxxx Grin | |||
Name:
|
Xxxxx Grin | |||
Title:
|
Director | |||
| VALENS U.S. SPV I, LLC | ||||
| By: Valens Capital Management, LLC, its investment manager | ||||
| By: | /s/ Xxxxx Grin | |||
Name:
|
Xxxxx Grin | |||
| Title: Authorized Signatory | ||||
| VALENS OFFSHORE SPV I, LTD. | ||||
| By: Valens Capital Management, LLC, its investment manager | ||||
| By: | /s/ Xxxxx Grin | |||
Name:
|
Xxxxx Grin | |||
| Title: Authorized Signatory | ||||
| PSOURCE STRUCTURED DEBT LIMITED | ||||
| By: Laurus Capital Management, LLC, its investment manager | ||||
| By: | /s/ Xxxxx Grin | |||
Name:
|
Xxxxx Grin | |||
| Title: Principal | ||||
ANNEX I
SCHEDULE A to the Stock Pledge Agreement
Pledged Stock
| Stock | Number | % of | ||||||||||||||||||
| Class of | Certificate | of | Outstanding | |||||||||||||||||
| Pledgor | Issuer | Stock | Number | Par Value | Shares | Shares | ||||||||||||||
Silicon Mountain Holdings, Inc. |
Silicon Mountain Memory, Incorporation |
Common Stock |
$0.01 |
100% |
||||||||||||||||
