EXHIBIT 10.2
Execution Copy
AMENDMENT TO
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AMENDMENT (this "Amendment") to the Restricted Stock Purchase
Agreement (the "Agreement"), dated as of December 7, 1998, by and between Accom,
Inc., a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxx, an individual
residing in California (the "Purchaser"), has been executed and delivered
effective as of June 20, 1999, by and between the Company and the Purchaser.
BACKGROUND
In accordance with the terms and conditions of this Amendment, the
Company and the Purchaser desire to amend the Agreement: (i) to terminate the
Company's repurchase option upon certain of the 100,000 shares (the "Shares") of
the Company's Common Stock (the "Common Stock") sold to Purchaser by the Company
in connection with the Agreement, (ii) to eliminate the Company's rights
regarding the effect of tender of the purchase price, (iii) to terminate certain
restrictions on the transfer of the Shares and (iv) to amend the legend placed
upon the Shares.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements of the
Company and the Purchaser, and intending to be legally bound, the Company and
the Purchaser agree as follows:
1. Section 2 of the Agreement shall be amended and restated in its
entirety to read as follows:
"2. No Repurchase Option.
(a) On June 20, 1999, all Shares shall be fully
vested in the Purchaser and shall not be subject to any
repurchase option of the Company."
2. Section 3 of the Agreement shall no longer be of any force and
effect and shall be amended and restated in its entirety to read as follows:
"3. [Intentionally Omitted.]"
3. Section 4 of the Agreement shall no longer be of any force and
effect and shall be amended and restated in its entirety to read as follows:
"4. [Intentionally Omitted.]"
4. Section 5.2 shall be amended and restated in its entirety to read as
follows:
"5.2 Accordingly, to implement the Purchaser's
representations and agreements, the Purchaser agrees to
authorize the Company to place substantially the following
legends, and any legend required by applicable State
Securities Laws, on each Certificate issued to the Purchaser
to evidence the Shares, and to place a stop order against
further transfer of the Shares except in compliance with the
Act and applicable State Securities Laws.
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ISSUED AND TRANSFERRED WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND UNDER STATE SECURITIES
LAWS AND MAY NOT BE SOLD, TRANSFERRED OR DISPOSED OF UNLESS SO
REGISTERED OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE."
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the date first above written.
ACCOM, INC.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Chief Executive Officer
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
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Execution Copy
AMENDED AND RESTATED
SECURED PROMISSORY NOTE
$65,000 June 20, 1999
FOR VALUE RECEIVED, Xxxxxx X. Xxxxx ("Maker"), promises to pay to
Accom, Inc., a Delaware corporation ("Payee"), in lawful money of the United
States of America, the principal sum of Sixty-Five Thousand dollars ($65,000)
together with interest in arrears on the unpaid principal balance of this Note
in accordance with Section 1.
This Note terminates and supersedes that certain Non-Recourse
Promissory Note issued by Maker to Payee dated December 7, 1998 (the "Canceled
Note"). The Canceled Note is attached hereto as Exhibit A.
1. PAYMENTS.
1.1 Principal and Interest. Subject to Section 1.3,
(a) The principal amount of this Note then
outstanding shall be due and payable on December 7, 2003.
(b) Interest shall begin to accrue on the unpaid
principal balance of this Note commencing on December 7, 1998 until repayment of
this Note in full. The interest rate shall be a variable annual rate equal to
the prime rate of Comerica Bank which rate shall be established and adjusted as
necessary at the beginning of each calendar quarter during the term of this Note
and shall be calculated on the basis of a year of 365 or 366 days, as
applicable, and charged for the actual number of days elapsed.
(c) All accrued, unpaid interest shall be due and
payable together with the payment of principal on December 7, 2003.
1.2 Manner of Payment. All payments of principal and interest
on this Note shall be made by wire transfer to such accounts as specified by
Payee, promptly upon request of Maker, or by check at 0000 X'Xxxxx Xxxxx, Xxxxx
Xxxx, XX 00000, or at such other place in the United States of America as Payee
shall designate to Maker in writing. If any payment of principal or interest on
this Note is due on a day which is not a Business Day, such payment shall be due
on the next succeeding Business Day, and such extension of time shall be taken
into account in calculating the amount of interest payable under this Note.
"Business Day" means any day other than a Saturday, Sunday or legal holiday in
the State of California.
1.3 Optional Prepayment. Maker may, without premium or
penalty, at any time and from time to time, prepay all or any portion of the
outstanding principal balance due under this Note, provided that each such
prepayment is accompanied by accrued interest on the amount of principal prepaid
calculated to the date of such prepayment. Any partial prepayments shall be
applied to installments of principal in inverse order of their maturity.
2. DEFAULTS.
2.1 Events of Default. The occurrence of any one or more of
the following events with respect to Maker shall constitute an event of default
hereunder ("Event of Default"):
(a) If Maker shall fail to pay when due any payment
of principal or interest on this Note and such failure continues for five (5)
Business Days after Payee notifies Maker thereof writing;
(b) If, pursuant to or within the meaning of the
United States Bankruptcy Code or any other federal or state law relating to
insolvency or relief of debtors (a "Bankruptcy Law"), Maker shall (i) commence a
voluntary case or proceeding; (ii) consent to the entry of an order for relief
against it in an involuntary case; (iii) consent to the appointment of a
trustee, receiver, assignee, liquidator or similar official; or (iv) make an
assignment for the benefit of its creditors; or
(c) If a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that (i) is for relief against Maker in
an involuntary case; (ii) appoints a trustee, receiver, assignee, liquidator or
similar official for Maker or substantially all of Maker's properties; or (iii)
orders the liquidation of Maker, and in each case the order or decree is not
dismissed within 120 days.
2.2 Remedies. Upon the occurrence of an Event of Default
hereunder (unless all Events of Default have been cured or waived by Payee),
Payee may, at its option, (a) by written notice to Maker, declare the entire
unpaid principal balance of this Note, together with all accrued interest
thereon, immediately due and payable regardless of any prior forbearance, and
(b) exercise any and all rights and remedies available to it under applicable
law, including, without limitation, the right to collect from Maker all sums due
under this Note. Maker shall pay all reasonable attorneys' fees incurred by or
on behalf of Payee in connection with Payee's exercise of any or all of its
rights and remedies under this Note.
2.3 Recourse. Upon the occurrence of an Event of Default
hereunder (unless all Events of Default have been cured or waived by Payee),
Payee shall have full recourse against all tangible and intangible assets of
Maker, including, but not limited to, the shares of common stock of Payee
purchased by Maker (the "Shares") in connection with the Restricted Stock
Purchase Agreement, dated as December 7, 1998 and amended as of June 20, 1999,
between Maker and Payee (the "Restricted Stock Purchase Agreement"). Payee shall
have a full right of offset for any amounts due upon such Event of Default
against any amounts payable by Payee to Maker.
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3. COLLATERAL.
3.1. Security Interest. This Note constitutes a "security
agreement" within the meaning of the Uniform Commercial Code of the State of
California as in effect on the date hereof and as amended from time to time
hereafter. Payee and Maker desire to secure the payment and performance of all
money, debts, obligations and liabilities, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with this Note (the "Secured
Obligations"). Accordingly, Maker hereby grants, assign, transfer, pledge, and
set over to Payee a first-priority security interest in and lien on the Shares.
3.2. Further Assurances. Maker agrees that at any time and
from time to time, at its expense, Maker will promptly execute and deliver all
further instruments and documents (including, without limitation, financing
statements and continuation statements), and take all further action that Payee
may request, in order to perfect and protect the security interests granted or
purported to be granted hereby and to enable Payee to exercise and enforce its
rights and remedies hereunder with respect to the Shares.
4. MISCELLANEOUS.
4.1 Waiver. The rights and remedies of Payee under this Note
shall be cumulative and not alternative. No waiver by Payee of any right or
remedy under this Note shall be effective unless in a writing signed by Payee.
Neither the failure nor any delay in exercising any right, power or privilege
under this Note will operate as a waiver of such right, power or privilege and
no single or partial exercise of any such right, power or privilege by Payee
will preclude any other or further exercise of such right, power or privilege or
the exercise of any other right, power or privilege. To the maximum extent
permitted by applicable law, (a) no claim or right of Payee arising out of this
Note can be discharged by Payee, in whole or in part, by a waiver or
renunciation of the claim or right unless in a writing, signed by Payee; (b) no
waiver that may be given by Payee will be applicable except in the specific
instance for which it is given; and (c) no notice to or demand on Maker will be
deemed to be a waiver of any obligation of Maker or of the right of Payee to
take further action without notice or demand as provided in this Note.
4.2 Notices. All notices, requests, demands and other
communications called for or contemplated hereunder shall be in writing and
shall be deemed to have been duly given when delivered to the party to whom
addressed or when sent by telecopy (as indicated by a telecopy confirmation and
if promptly confirmed by registered or certified mail, return receipt requested,
prepaid and addressed) to the parties, their successors in interest, or their
assignees pursuant to the terms of Section 6.5 of the Restricted Stock Purchase
Agreement.
4.3 Severability. Any provision of this Note which is invalid,
illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this Note invalid,
illegal or unenforceable in any other jurisdiction.
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4.4 Governing Law. This Note shall be construed and enforced
in accordance with and governed by the laws of the State of Delaware.
4.5 Parties In Interest. This Note shall bind Maker and its
successors and assigns. This Note shall not be assigned or transferred by Maker
or Payee without the express prior written consent of Maker, except by operation
of law or in connection with the sale of all or substantially all of the stock
or assets of Maker or Payee (as applicable).
4.6 Section Headings, Construction. The headings of each
Section, subsection or other subdivision of this Note are for reference only and
shall not limit or control the meaning thereof. All references to "Section" or
"Sections" refer to the corresponding Section or Sections of this Note unless
otherwise specified. All words used in this Note will be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly
provided, the words "hereof" and "hereunder" and similar references refer to
this Note in its entirety and not to any specific section or subsection hereof.
4.7 No Usury. It is the intent of the parties that the rate of
interest and other charges to the Maker shall be lawful. If for any reason the
interest or other charges payable hereunder are found by a court of competent
jurisdiction, in a final determination, to exceed the limit which the Payee may
lawfully charge the Maker, then the obligation to pay interest or other charges
shall automatically be reduced to such limit and, if any amount in excess of
such limit shall have been paid, then such amount shall be refunded to the
Maker.
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IN WITNESS WHEREOF, Maker has executed and delivered this Note as of
the date first stated above.
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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