EXHIBIT 10.4
AGREEMENT
THIS AGREEMENT (this "Agreement") is dated as of February 4, 2001, by and
among MindArrow Systems, Inc., a Delaware corporation (the "Company"), Xxxxxx X.
Xxxxxxxx, an individual ("Xxxxxxxx"), and Xxxx X. XxXxxx, an individual
("McAfee").
RECITALS
A. U.S. Stock Transfer Corporation, the Company's transfer agent
("Transfer Agent"), has informed the Company of a discrepancy (the
"Discrepancy") between the number of shares of the Company's common stock listed
as issued and outstanding in the name of Cede & Co ("DTC") on the records of the
Transfer Agent as compared to the number of shares of the Company's common stock
which DTC reports to be issued and outstanding in its name based on stock
certificates of the Company issued to it.
B. The amount of the Discrepancy, as more fully described in Exhibit A,
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attached hereto, is 1,108,051 shares of the Company's common stock (the
"Shares").
C. Pursuant to Section 8-401 of the Delaware Uniform Commercial Code, if a
holder of valid certificates representing shares of the Company's common stock
meets the conditions set forth in Section 8-401 of the Delaware Uniform
Commercial Code and requests that the Company register a transfer of its shares,
and if such holder is a "Protected Purchaser" as such term is defined in Section
8-303 of the Delaware Uniform Commercial Code, then the Company is statutorily
under a duty to register such transfer.
D. Pursuant to Section 8-401 of the Delaware Uniform Commercial Code, the
Company may be liable for losses incurred by a Protected Purchaser resulting
from unreasonable delay by the Company in registration, or failure or refusal to
register the requested transfer.
E. Although this Corporation is continuing its investigation of the
Discrepancy, it has been unable to determine that any of the Shares are held of
record or beneficially owned by persons other than Protected Purchasers or are
not valid certificated securities of the Corporation.
F. As a result of such statutory obligation, the Board of Directors of the
Company has resolved to treat the Shares as duly and validly issued, fully paid
and non-assessable until and unless the Company determines that a holder of
Shares is not a Protected Purchaser or the Shares are not valid certificated
securities.
X. Xxxxxxxx is a co-founder and the Co-Chairman of the Board of Directors
of the Company and is the beneficial owner of 1,778,136 shares of the Company's
common stock (the "Xxxxxxxx Shares").
X. XxXxxx is a co-founder and the Co-Chairman of the Board of Directors of
the Company and is the beneficial owner of 1,385,527 shares of the Company's
common stock (the "McAfee Shares").
I. As co-founders of the Company and as the two largest shareholders of
the Company, Xxxxxxxx and McAfee have a significant interest in resolving the
Discrepancy.
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In consideration of the representations, warranties, covenants and
agreements contained in this Agreement (including the payment of the expenses
specified in Section 2.4 hereof) and as an inducement to cause the Company to
instruct the Transfer Agent to treat, subject to applicable law, the Shares as
outstanding shares of Common Stock and to recognize and record transfers of the
Shares, the parties agree as follows:
1. Surrender and Cancellation of Shares.
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1.1 Xxxxxxxx hereby contributes 554,025 shares of common stock of the
Company to the Company, such shares to be cancelled by the Company (the
"Xxxxxxxx Cancellation Shares"); provided, however, that if requested by the
Company, Xxxxxxxx shall effect such contribution by transferring the Xxxxxxxx
Cancellation Shares to the Depository Trust Company (or its nominee) (the "DTC")
concurrently with the transfer by DTC, to the Company for cancellation, of share
certificates representing 554,025 of the Shares. Xxxxxxxx hereby delivers or
agrees to promptly deliver (and in any event within ten business days from the
date hereof) to the Company Stock Certificate No. 65 along with an executed
stock power with a signature guarantee for the purpose of effecting such
contribution or transfer. The Company shall cause a new stock certificate to be
issued and returned to Xxxxxxxx for the amount by which the share certificates
exceed the number of Xxxxxxxx Cancellation Shares.
1.2 McAfee hereby contributes 554,026 shares of common stock of the
Company to the Company, such shares to be cancelled by the Company (the "McAfee
Cancellation Shares"); provided, however, that if requested by the Company,
McAfee shall effect such contribution by transferring the McAfee Cancellation
Shares to the DTC concurrently with the transfer by DTC, to the Company for
cancellation, of share certificates representing 554,026 of the Shares. McAfee
hereby delivers or agrees to promptly deliver (and in any event within ten
business days from the date hereof) to the Company Stock Certificates Nos. 17
and 19 along with an executed stock power with a signature guarantee for the
purpose of effecting such contribution or transfer. The Company shall cause a
new stock certificate to be issued and returned to McAfee for the amount by
which the share certificates exceed the number of McAfee Cancellation Shares.
1.3 Xxxxxxxx and McAfee each hereby agree to execute such additional
documents and provide the Company's transfer agent with any further assurances
as may be necessary to effect the cancellation or transfer of the Xxxxxxxx
Cancellation Shares and the McAfee Cancellation Shares, respectively.
2. Covenants of the Company.
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2.1 Company agrees to use commercially reasonable efforts to investigate
the Discrepancy and pursue any rights it may have with respect to the Shares or
against any party that may have acted wrongfully with respect to the issuance or
transfer of the Shares; provided that the Company's Board of Directors may
determine the extent to which any such claims and the probability of recovery
shall warrant action. In the event that the Company shall determine not to
pursue a claim it shall, at the request of either Xxxxxxxx or McAfee (or both)
assign to Xxxxxxxx and McAfee (or if only one of Xxxxxxxx and McAfee requests
such assignment, to the requesting party provided that the Company and the
requesting party have given at least 20
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business days notice (the "Notice Period") to the other party of the request for
the assignment and the other party shall have the right during the Notice Period
to elect to be a co-assignee by giving notice thereof to the Company) the
Company's right and interest in such claim for no additional consideration. In
the event that the Company makes an assignment to Xxxxxxxx or McAfee (but not
both of them), then the parties acknowledge that assignee may pursue the claim
and shall be exclusively entitled to whatever recovery is obtained. In the event
that the Company makes an assignment to Xxxxxxxx and McAfee (both of them and
not just one), then Xxxxxxxx and McAfee hereby agree to cooperate together in
the pursuit of the claims and shall share expenses and any recovery obtained
equally.
2.2 In the event that, pursuant to Section 2.1, the Company recovers any
of the Shares from any improper issuance of the Shares, it shall, subject to
Sections 2.4 and 2.5:
(a) issue to Xxxxxxxx in shares of common stock of the Company that
number of shares determined by the following formula: Number of shares = A
multiplied by B, where (A) equals fifty percent (50%), and (B) equals the number
of shares of Common Stock of the Company recovered by the Company pursuant to
Section 2.1; and
(b) issue to McAfee in shares of common stock of the Company that
number of shares determined by the following formula: Number of shares = A
multiplied by B, where (A) equals fifty percent (50%), and (B) equals the number
of shares of Common Stock of the Company recovered by the Company pursuant to
Section 2.1.
2.3 In the event that, pursuant to Section 2.1, the Company recovers any
cash or other property (other than Shares), it shall, subject to Sections 2.4
and 2.5:
(a) issue to Xxxxxxxx in shares of common stock of the Company that
number of shares determined by the following formula: Number of shares = (A X B)
divided by C, where (A) equals fifty percent (50%), (B) equals the cash and/or
fair market value (as determined in good faith by a majority of the Company's
board of directors) of the other property recovered by the Company pursuant to
Section 2.1 and (C) equals $4.50; and
(b) issue to McAfee in shares of common stock of the Company that
number of shares determined by the following formula: Number of shares = (A X B)
divided by C, where (A) equals (50%), (B) equals the cash and/or fair market
value (as determined in good faith by a majority of the Company's board of
directors) of the other property recovered by the Company pursuant to Section
2.1 and (C) equals $4.50.
2.4 Repayment of Expenses.
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(a) Prior to issuing any shares to Xxxxxxxx pursuant to Section 2.2
or Section 2.3, the Company shall first deduct from such issuance (or issuances)
an aggregate of 16,000 shares (representing $72,000 in expenses paid by the
Company on behalf of Xxxxxxxx).
(b) Prior to issuing any shares to McAfee pursuant to Section 2.2
or Section 2.3, the Company shall first deduct from such issuance (or issuances)
an aggregate of 16,000 shares (representing $72,000 in expenses paid by the
Company on behalf of McAfee).
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2.5 Limitation on Recovery.
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(a) Notwithstanding anything herein to the contrary, the Company
shall have no obligation under this Agreement to issue shares to Xxxxxxxx after
Xxxxxxxx has received 554,025 shares of Common Stock pursuant to this Agreement.
(b) Notwithstanding anything herein to the contrary, the Company
shall have no obligation under this Agreement to issue shares to McAfee after
McAfee has received 554,026 shares of Common Stock pursuant to this Agreement.
3. Representations and Warranties by Xxxxxxxx. Xxxxxxxx represents and
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warrants to Company as follows:
3.1 Title to Stock. Xxxxxxxx is the beneficial and record owner of the
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Xxxxxxxx Cancellation Shares, and, except as set forth on Schedule 3.1, has good
and marketable title thereto, free and clear of any liens, encumbrances,
security agreements, equities, pledges, assessments, options, claims, charges,
conditions, and restrictions, other than those created or evidenced by this
Agreement.
3.2 Binding Agreement. This Agreement has been executed and delivered by
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Xxxxxxxx, and this Agreement is a valid and binding obligation of Xxxxxxxx
enforceable in accordance with its terms.
3.3 Conflicts. Except as set forth in Schedule 3.3, Xxxxxxxx is not
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subject to, or a party to, any mortgage, lien, lease, license, permit,
agreement, contract, instrument, law, rule, ordinance, regulation, order,
judgment or decree, or any other restriction of any kind or character, which
would prevent consummation of the transactions contemplated by this Agreement or
compliance by Xxxxxxxx with the terms, conditions and provisions hereof,
including without limitation the sale and cancellation of the Xxxxxxxx Shares
pursuant to Section 1.1 above. Except as set forth in Schedule 3.3, no consent
of any person or entity is necessary for the consummation of the transactions
contemplated hereby by Xxxxxxxx.
4. Representations and Warranties by McAfee. McAfee represents and warrants
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to Company as follows:
4.1 Title to Stock. McAfee is the beneficial and record owner of the
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McAfee Cancellation Shares, and, except as set forth on Schedule 4.1, has good
and marketable title thereto, free and clear of any liens, encumbrances,
security agreements, equities, pledges, assessments, options, claims, charges,
conditions, and restrictions, other than those created or evidenced by this
Agreement.
4.2 Binding Agreement. This Agreement has been executed and delivered by
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McAfee, and this Agreement is a valid and binding obligation of McAfee
enforceable in accordance with its terms.
4.3 Conflicts. Except as set forth on Schedule 4.3, McAfee is not
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subject to, or a party to, any mortgage, lien, lease, license, permit,
agreement, contract, instrument, law, rule, ordinance, regulation, order,
judgment or decree, or any other restriction of any kind or
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character, which would prevent consummation of the transactions contemplated by
this Agreement or compliance by McAfee with the terms, conditions and provisions
hereof, including without limitation the return and cancellation of the McAfee
Shares pursuant to Section 1.2 above. Except as set forth on Schedule 4.3, no
consent of any person or entity is necessary for the consummation of the
transactions contemplated hereby by McAfee.
5. Arbitration. All claims, disputes and other matters in question arising
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out of, or relating to, this Agreement or the performance hereof, shall be
submitted to, and determined by, arbitration if good faith negotiations among
the parties hereto, if any, does not resolve such claim, dispute or other
matter. Such arbitration shall proceed in accordance with the then-current rules
for arbitration established by Judicial Arbitration Mediation Services,
Inc./ENDISPUTE ("JAMS"), unless the parties hereto mutually agree otherwise, and
pursuant to the following procedures:
5.1 Company on the one hand and Xxxxxxxx or McAfee, as applicable, on the
other hand shall each appoint an arbitrator from the JAMS panel of retired
judges, and those party-appointed arbitrators shall appoint a third arbitrator
from the JAMS panel of retired judges within ten (10) days. If the
party-appointed arbitrators fail to appoint a third arbitrator within the ten
(10) days, such third arbitrator shall be appointed by JAMS in accordance with
its rules.
5.2 Reasonable discovery shall be allowed in arbitration.
5.3 All proceedings before the arbitrators shall be held in Orange
County, California. The governing law shall be as specified in Section 9.
5.4 The award rendered by the arbitrators shall be final and binding, and
judgment may be entered in accordance with applicable law and in any court
having jurisdiction thereof.
5.5 The award rendered by the arbitrators shall include (i) a provision
that the prevailing party in such arbitration recover its costs relating to the
arbitration and reasonable attorneys' fees from the other party, (ii) the amount
of such costs and fees, and (iii) an order that the losing party pay the fees
and expenses of the arbitrators.
5.6 The arbitrator shall by the agreement of the parties expressly be
prohibited from awarding punitive damages in connection with any claim being
resolved by arbitration hereunder.
6. Counsel to the Company. O'Melveny & Xxxxx LLP is legal counsel to the
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Company. Each of Xxxxxxxx and McAfee acknowledges that O'Melveny & Xxxxx LLP (i)
has represented the Company in this Agreement; (ii) does not represent, and has
not represented in connection with this Agreement, either Xxxxxxxx or McAfee;
and (iii) is not providing tax or other advice or counsel to Xxxxxxxx or McAfee
in connection with the transactions effected hereby. Each of McAfee and Xxxxxxxx
acknowledges that he has been advised to engage his own legal counsel or other
professional advisors and has either engaged such separate counsel or advisors
or has waived the opportunity to do so.
7. Amendment/Stock Adjustments. This Agreement may not be amended except by
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an instrument in writing signed on behalf of each of the parties. The share
numbers contained
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herein shall be proportionately adjusted for any stock splits or stock
dividends the Company effects after the date hereof.
8. Notices. All notices, requests, claims, demands and other communications
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under this Agreement shall be in writing and shall be deemed given upon (a)
transmitter's confirmation of a receipt of a facsimile transmission, (b)
confirmed delivery by a standard overnight carrier or when delivered by hand or
(c) the expiration of five business days after the day when mailed in the United
States by certified or registered mail, postage prepaid, addressed at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If to Company: MindArrow Systems, Inc.
------------- 000 Xxxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
If to Xxxxxxxx: 2025 Via Teca
-------------- Xxx Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
If to McAfee: 00000 Xxxxxxx Xxxx
------------ Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx XxXxxx
9. Governing Law. This Agreement and the legal relations among the parties
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hereto shall be governed by and construed in accordance with the laws of the
State of California, as applied to contracts entered into and to be wholly
performed within such State.
10. Counterparts. This Agreement may be executed simultaneously in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11. Entire Agreement. This Agreement, including the Exhibit attached hereto,
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sets forth the entire agreement and understanding of the parties hereto in
respect of the subject matter contained herein, and supersede all prior
agreements, promises, covenants, arrangements, communications, representations
or warranties, whether oral or written, by any officer, employee or
representative of any party hereto with respect to the subject matter hereof.
12. Third Parties. Except as specifically set forth or referred to herein,
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nothing herein expressed or implied is intended or shall be construed to confer
upon or give to any person or corporation other than the parties hereto and
their successors or assigns, any rights or remedies under or by reason of this
Agreement.
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13. Specific Performance. The parties acknowledge that each party would not
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have an adequate remedy at law for money damages in the event that this
Agreement has not been performed in accordance with its terms, and therefore
agrees that the other party shall be entitled to specific enforcement of the
terms hereof in addition to any other remedy to which it may be entitled, at law
or in equity.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective officers thereunto duly authorized or other duly
authorized representatives, all as of the date first written above.
COMPANY:
MindArrow Systems, Inc.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
XXXXXXXX:
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
MCAFEE:
/s/ Xxxx XxXxxx
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Xxxx X. XxXxxx
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EXHIBIT A
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Shares Report
Certificate Date Issued DTC on Records of Difference
No. to DTC Shares Transfer Agent in Shares
-------------------------------------------------------------------------------
15318 05/21/1999 365,541 38,799 326,742
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15653 09/27/1999 136,000 -- 136,000
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15654 09/27/1999 71,300 -- 71,300
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15917 11/16/1999 50,108 -- 50,108
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15933 12/29/1999 41,635 -- 41,635
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15935 12/29/1999 32,767 600 32,167
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15936 12/29/1999 113,972 -- 113,972
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15946 01/05/2000 45,395 600 44,795
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17004 04/07/2000 12,985 -- 12,985
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17021 04/19/2000 29,980 380 29,600
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17023 04/19/2000 479,735 262,738 216,997
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17134 06/22/2000 1,750 -- 1,750
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17135 06/22/2000 30,000 -- 30,000
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Totals 1,411,168 303,117 1,108,051
===============================================================================
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Schedule 3.1
The Xxxxxxxx Cancellation Shares are subject to the restrictions on transfer
contained in that certain Tag Along Agreement, dated September 1999, between
Blakeley, McAfee, the Company and @Onex LLC, a Delaware limited liability
company.
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Schedule 3.3
The Xxxxxxxx Cancellation Shares are subject to the restrictions on transfer
contained in that certain Tag Along Agreement, dated September 1999, between
Blakeley, McAfee, the Company and @Onex LLC, a Delaware limited liability
company.
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Schedule 4.1
The McAfee Cancellation Shares are subject to the restrictions on transfer
contained in that certain Tag Along Agreement, dated September 1999, between
Blakeley, McAfee, the Company and @Onex LLC, a Delaware limited liability
company.
A portion of the McAfee Cancellation Shares have been pledged to the Company
pursuant to that certain Indemnification Agreement, dated October 25, 1999
between the Company and McAfee.
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Schedule 4.3
The McAfee Cancellation Shares are subject to the restrictions on transfer
contained in that certain Tag Along Agreement, dated September 1999, between
Blakeley, McAfee, the Company and @Onex LLC, a Delaware limited liability
company.
A portion of the McAfee Cancellation Shares have been pledged to the Company
pursuant to that certain Indemnification Agreement, dated October 25, 1999
between the Company and McAfee.
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