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EXHIBIT 10.23
DATAWORKS CORPORATION
SPLIT-DOLLAR INSURANCE AGREEMENT
[ENDORSEMENT]
THIS AGREEMENT is made and entered into this _____ day of
_______________, 1997, by and between DATAWORKS CORPORATION, a California
corporation, with its principal place of business located in San Diego,
California (hereinafter referred to as "Employer"), and ______________
(hereinafter referred to as "Employee").
WHEREAS, Employee is a valued employee of Employer and Employer wishes
to retain him in its employ; and
WHEREAS, Employer, as an inducement to such continued employment,
wishes to assist Employee with his personal life insurance program.
NOW THEREFORE, in consideration of the premises and of the mutual
promises contained herein, Employer and Employee agree as follows:
1. (a) Employer has purchased or will purchase a policy of life
insurance insuring Employee's life (hereinafter referred to as "Policy"). The
Policy is Policy Number ____________ and is issued by New York Life Insurance
and Annuity Corporation (hereinafter referred to as "Insurer") in the amount of
$________________. Employer and Employee agree that the Policy shall be subject
to the terms and conditions of this Agreement and that Employer and Employee
shall take any action that may be necessary to cause the Policy to conform to
the provisions of this Agreement, including the execution and filing by Employer
of a form of endorsement with the Insurer setting forth the applicable terms of
this Agreement. Except as provided in Section 2, Employer shall be the sole and
absolute owner of the Policy and, except in the event of a Change in Control, as
defined in Section 10, the direct beneficiary of an amount of the death benefit
proceeds equal to the greater of (a) the cash surrender value of the Policy as
of the date to which premiums have been paid, or (b) the premiums paid to
Insurer by the Employer; provided, however, that upon and following the
occurrence of a Change in Control as defined in Section 10, Employer shall have
the right to receive only the cash surrender value of the Policy. Except as
otherwise provided in this Agreement, Employer shall have the right to borrow or
withdraw from the cash surrender value of the Policy. Any indebtedness on the
Policy incurred by Employer will first be deducted from the proceeds payable to
the Employer, including any accrued but unpaid interest due on such
indebtedness.
(b) Upon the death of Employee, Employer promptly shall take
all action necessary to obtain payment of the death benefit provided under the
Policy. Death benefit proceeds payable under the Policy shall be paid first to
Employer, as provided in this Section 1. Any remaining proceeds then shall be
paid to the beneficiary described in Section 2. No amount shall be paid from the
death benefit proceeds to the beneficiary until the full amount due
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Employer hereunder has been paid. The parties hereto agree that the beneficiary
designation of the Policy shall conform to the provisions hereof.
2. Employee shall have the right to designate and change direct and
contingent beneficiaries of any death benefit proceeds remaining after the
amounts described in Section 1, above, are paid to Employer, and to elect and
change a payment plan for such beneficiaries. Any assignment of the Policy
proceeds by the Employee pursuant to Section 8, of this Agreement, shall be
limited to the death proceeds only and shall not apply to the amounts payable to
the Employer as described in Section 1.
3. (a) Premiums on the Policy shall be paid in accordance with this
Section 3. During such period as Employer is required to pay the premiums, the
entire premium on the Policy shall be paid by Employer as it becomes due, or
within the grace period provided therein, or Employer shall, as applicable,
cause the cash value of the Policy to be used to pay such premiums. Employer
shall not permit the Policy to lapse or to be canceled by Insurer because of
Employer's failure to pay or cause to be paid sufficient premiums in a timely
manner to keep the Policy in full force and effect. Employer shall be obligated
to pay the premiums or cause the premiums to be paid so long as Employee is
employed by Employer unless either (i) this Agreement, prior to the occurrence
of a Vesting Event as defined in Section 6, is terminated as provided in Section
5, or (ii) the Policy, prior to the occurrence of a Vesting Event, is disposed
of by the Employer, as provided in Section 4. On or following the occurrence of
a Vesting Event, Employer shall continue to pay the premiums or to cause the
premiums on the Policy to be paid until the Employee's death, regardless of
whether Employee continues employment with Employer or terminates employment
with Employer. Notwithstanding any provision in this Agreement to the contrary,
Employer's obligation to pay premiums on the Policy or to cause such premiums to
be paid is conditioned on Employee entering into, for each year, and prior to
the date such premiums are due, a promissory note, to the extent such note is
required as described in Section 9, below. Upon request, Employer shall promptly
furnish Employee evidence of timely payment of each premium. Employer annually
shall furnish Employee with a statement of the amount of income reportable by
Employee for federal and state income tax purposes as a result of its payment of
such premium.
(b) Dividends, if any, declared on the Policy shall be applied
to reduce the amount of premiums due on the Policy. The parties hereto agree
that the dividend election provisions of the Policy, if any, shall conform to
the provisions hereof.
4. Prior to the occurrence of a Vesting Event, while Employee remains
employed by Employer, Employer shall not sell, surrender, change the insured or
transfer ownership of the Policy while this Agreement is in effect or terminate
the dividend election thereof, if any, without obtaining the written consent of
Employee and without first giving Employee the option to purchase the Policy
during a period of sixty (60) days from notice to Employee of such intention. If
Employee elects to purchase the Policy, the purchase price of the Policy shall
be the cash surrender value of the Policy as of the date of transfer to
Employee, less any Policy and premium loans and any other indebtedness secured
by the Policy. Provided, however, that if at the time Employee elects to
purchase the Policy, the cash surrender value of the Policy is less
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than the premium paid to the Insurer by Employer, as reduced by any Policy and
premium loans and any other indebtedness secured by the Policy, the difference
between such cash surrender value of the Policy and the premiums paid to the
Insurer by Employer also shall be paid to Employer by Employee. The exercise by
the Employer of the right to surrender the Policy or to change the insured will
terminate the rights of the Employee under this Agreement. Employer shall have
no rights provided in this Section 4 on or following the occurrence of a Vesting
Event.
5. This Agreement may be terminated by either party hereto, prior to
the occurrence of a Vesting Event, as defined in Section 6(b), and only with the
consent of the other party by giving notice of termination in writing to the
other party. In addition, prior to the occurrence of a Vesting Event, this
Agreement shall terminate automatically upon termination of Employee's
employment with Employer for any reason other than Employee's death. This
Agreement may not be terminated on or following the occurrence of a Vesting
Event, except with the consent of both parties. In the event of termination of
the Agreement, Employee shall have the right to purchase the Policy from
Employer on the same terms and conditions as specified in Section 4 hereof.
6. Following the occurrence of the earlier of (i) Employee's completion
of sixty (60) full months of employment with Employer, the first month of which
period shall be the month in which this Agreement is executed, (ii) Employee's
attainment of age fifty-five (55), (iii) Employee becoming Disabled or (iv) the
occurrence of a Change in Control, as described in Section 10 (hereinafter
collectively referred to as a "Vesting Event"), Employee shall become fully
vested in and shall have the unconditional right in the death benefit proceeds
described in Section 2 of this Agreement regardless of whether Employee
continues in employment with Employer or terminates employment with Employer.
Upon the occurrence of a Vesting Event, Employer shall relinquish any rights to
act unilaterally with respect to the Policy as set forth in Sections 4 and 5 of
this Agreement; provided, however, that, except in the event of the occurrence
of a Change in Control, Employer may borrow or withdraw from the cash surrender
value of the Policy or assign the cash value of the Policy as collateral for a
loan upon or following the occurrence of a Vesting Event. Employer shall have no
right to borrow, withdraw from or assign the cash surrender value of the Policy
as collateral for a loan effective as of the date immediately preceding a Change
in Control. In the event Employer borrows the cash value of the Policy, interest
on such loan shall be paid by Employer in accordance with the terms of the
Policy loan or, to the extent interest is accrued but unpaid at the time of any
payment to Employer under this Agreement, such accrued but unpaid interest shall
reduce the amount to be paid to Employer. Employer shall immediately notify
Insurer, in writing, of the occurrence of a Vesting Event.
For purposes of this Agreement, "Disability" shall mean Employee's incapacity to
engage in any substantial gainful activity because of a medically determinable
physical or mental impairment which can be expected to result in death, or which
has lasted or can be expected to last for a continuous period of not less than
twelve (12) months. The performance and degree of such impairment shall be
supported by medical evidence.
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7. The Insurer shall be fully discharged from its obligations under the
Policy by payment of the Policy death benefit to the beneficiary or
beneficiaries named in the Policy, subject to the terms and conditions of the
Policy and endorsements on the Policy. In no event shall the Insurer be
considered a party to this Agreement, or any modification or amendment hereof.
No provision of this Agreement, nor of any modification or amendment hereof,
shall in any way be construed as enlarging, changing, varying or in any other
way affecting the obligations of the Insurer as expressly provided in the
Policy, except insofar as the provisions hereof are made a part of the Policy by
the endorsement, executed by Employer and filed with the Insurer in connection
herewith.
8. Employee shall have the right to assign any part or all of
Employee's interest in the Policy and this Agreement to any person, entity or
trust by execution of a written assignment delivered to Employer and to the
Insurer. Provided, however, that if the original application to the Insurer
provides that such third party is the owner of such rights then Employee shall
have no rights or any incidents of ownership in the Policy.
9. As an inducement to Employer to undertake this Agreement, Employee
agrees to execute a promissory note in favor of Employer (the "Note"), to the
extent required under this Section 9. Such Note shall be substantially in the
form attached hereto as Exhibit A and incorporated by this reference herein. The
amount of the Note at any time and from time-to-time shall be the difference
between the amount of the premiums advanced by Employer and the cash surrender
value of the Policy, as initially determined on the execution date of the Note
and as subsequently adjusted on the last business day of each calendar quarter
("Principal Adjustment Date"). The Note shall be due and payable upon Employee
terminating employment with Employer for any reason prior to the occurrence of a
Vesting Event. The Note shall be canceled upon the occurrence of a Vesting
Event. Upon such Principal Adjustment Date when the cash surrender value of the
Policy equals or exceeds the amount of the premiums advanced by Employer, the
obligation of Employee under the Note will be extinguished and the Note will be
canceled.
10. In the event a Change of Control of Employer occurs, as defined in
this Section 10, then on the date immediately preceding the effective date of
such Change in Control, Employee's rights under this Agreement shall fully vest,
as provided in Section 6 of this Agreement, and Employer shall execute an
irrevocable trust for the benefit of Employee substantially in the form set
forth in the trust agreement attached hereto as Exhibit B (the "Trust") and
incorporated by this reference herein, and contemporaneously with the execution
of the Trust, Employer shall transfer ownership of the Policy to the Trust,
unless, under the terms of the Trust or this Agreement, Employee's beneficiary
is entitled to an immediate distribution or payment of death benefit proceeds,
in which case such payment shall be made without the necessity of transferring
the Policy to the Trust. Effective as of the date immediately preceding the
effective date of the Change in Control, the Employer shall relinquish any
powers to act unilaterally with respect to the Policy as set forth in Sections 4
and 5 of this Agreement and shall relinquish all rights with respect to the cash
value of the Policy other than the right to receive an amount from the death
benefit proceeds equal to the cash surrender value. As of the date immediately
preceding the effective date of a Change in Control, Employer shall
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have no further right to borrow or withdraw from the cash surrender value of the
Policy or assign the cash value of the Policy as collateral for a loan. Employer
shall immediately notify Insurer, in writing, of the occurrence of a Change in
Control.
For purposes of this Agreement, "Change in Control" shall mean (1) a
merger or consolidation in which Employer is not the surviving corporation, (2)
a reverse merger in which Employer is the surviving corporation but the shares
of Employer's common stock outstanding immediately preceding the merger are
converted by virtue of the merger into other property, whether in the form of
securities, cash or otherwise, (3) a sale of all or substantially all of
Employer's assets, (4) any other capital reorganization in which the beneficial
ownership of more than fifty percent (50%) of the shares of Employer entitled to
vote changes, or (5) the acquisition by any person, entity or group (excluding
any employee benefit plan, or related trust, sponsored or maintained by Employer
or any subsidiary of Employer) of the beneficial ownership, directly or
indirectly, of securities of Employer representing more than fifty percent (50%)
of the combined voting in the election of directors of Employer.
11. The following provisions are part of this Agreement and are
intended to meet the requirements of the Employee Retirement Income Security Act
of 1974:
(a) Employer is the named fiduciary.
(b) The funding policy under this Agreement is that all
premiums on the Policy be remitted to the Insurer by Employer when due.
(c) Direct payment of death proceeds by the Insurer is the
basis of payment of benefits under this Agreement, with those benefits
in turn being conditioned on the payment of premiums as provided in
this Agreement.
(d) For claims procedure purposes, the "Claims Manager" shall
be Employer.
(1) If for any reason a claim for benefits under this
Agreement is denied, the Claims Manager shall deliver to the
claimant a written explanation setting forth the specific
reasons for the denial, pertinent reference to the Agreement
section on which the denial is based, such other data as may
be pertinent and information on the procedures to be followed
by the claimant in obtaining a review of his claim, all
written in a manner calculated to be understood by the
claimant. For this purpose:
(A) The claimant's claim shall be deemed
filed when presented orally or in writing to the
Claims Manager.
(B) The Claims Manager's explanation shall
be in writing and delivered to the claimant within 90
days of the date the claim is filed.
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(2) The claimant shall have 60 days following his or
her receipt of the denial of the claim to file with the Claims
Manager a written request for review of the denial. For such
review, the claimant or his representative may submit
pertinent documents and written issues and comments.
(3) The Claims Manager shall decide the issue on
review and furnish the claimant with a copy of its review
determination within 60 days of receipt of the claimant's
request for review of his or her claim. The decision on review
shall be in writing and shall include specific reasons for the
decision, written in a manner calculated to be understood by
the claimant, as well as specific references to the pertinent
provisions of this Agreement on which the decision is based.
If a copy of the review decision is not so furnished to the
claimant within such 60 days, the claim shall be deemed denied
on review.
12. This Agreement shall be binding and inure to the benefit of
Employer and its successors and assigns, and Employee and his successors,
assigns, heirs, executors, administrators and beneficiaries.
13. Terms such as "cash value", "cash surrender value" and other terms
shall be as defined in the Policy, a specimen of which is attached hereto as
Exhibit C and incorporated by this reference herein.
14. This Agreement shall not be deemed (a) to give Employee any right
to be retained in the employ of Employer or (b) to interfere with the right of
Employer to discharge Employee at any time and for any reason, which right is
hereby reserved.
15. Any notice, consent or demand required or permitted to be given
under the provisions of this Agreement shall be in writing, and shall be signed
by the party giving or making the same. If such notice, consent or demand is
mailed to a party hereto, it shall be sent by United States certified mail,
postage prepaid, addressed to such party's last known address as shown on the
records of Employer. The date of such mailing shall be deemed the date of
notice, consent or demand.
16. This Agreement, and the rights of the parties hereunder, shall be
governed by and construed in accordance with the laws of the State of
California.
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IN WITNESS WHEREOF the parties have signed and sealed this Agreement as
of the day and year first above written.
DATAWORKS CORPORATION
By:
------------------------
Its:
------------------------
EMPLOYEE
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ENDORSEMENT
Policy No.: ________________ Insured: ___________________
Supplementing and amending the application for the above referenced Policy to
the New York Life Insurance and Annuity Corporation (hereinafter, the
"Insurer"), the undersigned DATAWORKS CORPORATION, the applicant and owner of
the Policy, requests and directs that:
1. RIGHTS OF OWNER. The Owner of the Policy shall be DATAWORKS CORPORATION, a
California corporation with its principal place of business in San Diego,
California. The Owner may exercise all Policy rights, except to the extent such
rights are restricted as specified in this Paragraph 1, and except that the
Owner shall not have the rights specified in Paragraph 2, below.
a. The Owner designates itself or its successors as direct beneficiary
of the greater of (i) an amount equal to the cash surrender value as of the date
to which premiums have been paid, or (ii) its premiums paid to the Insurer for
the Policy; provided, however, that upon and following the occurrence of a
Change in Control of Owner, Owner shall have the right to receive only the cash
surrender value of the Policy. For purposes of this Endorsement, "Change in
Control" shall have the same meaning given such term in that certain
Split-Dollar Insurance Agreement entered into between the Owner and the Insured
as of _________________, 1997 (the "Split-Dollar Agreement").
b. The Owner may not sell, surrender, change the Insured or transfer
ownership of the Policy without the written consent of Insured. Further, the
Owner's right to sell, surrender, change the Insured or transfer ownership of
the Policy shall terminate upon the occurrence of a Vesting Event; provided,
however, that Owner shall continue to have the right after the occurrence of a
Vesting Event to transfer ownership of the Policy to the Trust under DataWorks
Corporation Split-Dollar Insurance Agreements, as provided in Paragraph 10 of
the Split-Dollar Agreement. For purposes of this Endorsement, "Vesting Event"
shall have the same meaning given such term in the Split-Dollar Agreement.
c. The Owner shall have no right to borrow from, withdraw from or
assign as collateral for a loan the cash surrender value of the Policy effective
as of the date immediately preceding a Change in Control.
The Insurer will have the right to rely on any statement signed by Owner setting
forth the amount referred to above, stating whether a Change in Control with
respect to Owner has occurred and the effective date of such Change in Control,
or stating whether a Vesting Event has occurred, and any decisions made by
Insurer in reliance upon such statement will be conclusive and will fully
protect the Insurer.
2. RIGHTS OF INSURED. The Insured shall have the following rights with respect
to the proceeds not payable in Paragraph 1, above.
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a. The Insured shall have the sole right to designate and change the
beneficiaries of the proceeds payable under this Paragraph 2.
b. The Insured shall have the right to elect and change a payment plan
for the beneficiaries of the proceeds payable under this Paragraph 2.
c. The Insured shall have the right to assign the proceeds payable
under this Paragraph 2 or assign any part or all of the Insured's interest in
the Policy, by execution of a written assignment delivered to Owner and to the
Insurer.
d. The Insured has designated his beneficiary on the Insurer's
Beneficiary Designation Form, or the original application for life insurance, as
the case may be.
This Paragraph 2 will not limit the rights of the Owner as specified in
Paragraph 1, above.
3. EFFECTIVE ONLY WHEN FULLY EXECUTED. This Endorsement will not be effective
until signed by the proper parties. The signed original of this Endorsement must
be returned to the Home Office of the Insurer.
4. ADDITIONAL PROVISIONS.
a. Any collateral assignment made by Owner will be deducted only from
the proceeds payable in Paragraph 1, above.
b. Any assignment by the Insured of the proceeds specified in Paragraph
2, above, will be limited only to the proceeds payable under Paragraph 2.
c. Any indebtedness on the Policy, including, but not limited to, any
accrued but unpaid interest, will be deducted only from the proceeds payable in
Paragraph 1, above.
d. The exercise by the Owner of the right to surrender the Policy or to
change the Insured will terminate the rights of the Insured specified in
Paragraph 2, above.
e. The Policy rights specified in Paragraphs 1 and 2, above, may be
exercised by the Owner or the Insured, respectively, or their successors or
transferees.
f. If no beneficiaries named in Paragraph 1, or on the Insurer's
Beneficiary Designation Form, are alive when the Insured dies, payment under
Paragraph 1 will be paid to the Owner's successors, and payment under Paragraph
2 will be paid to the Insured's estate.
g. The Owner, with respect to the proceeds specified in Paragraph 1,
and the Insured, with respect to the proceeds specified in Paragraph 2, will
have the right to exercise the conversion privilege if applicable to such
portion and will be the Owner or Insured, as the case may be, of any new policy
issued in lieu of such benefit.
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h. This Endorsement shall not be amended, altered or terminated by
Owner, except to reflect the terms of the Split-Dollar Agreement, without the
express written consent of the Insured; provided, however, that if Insured
becomes the Owner of the Policy, this Endorsement shall terminate.
i. This Endorsement shall terminate upon the earlier of (i) receipt by
Insurer of a termination notice executed by Owner and Insured, or (ii) the
payment in full of Policy benefits provided herein.
Executed this ___ day of ______________________, 1997.
DATAWORKS CORPORATION, OWNER AND
APPLICANT
---------------------------------------
By:
------------------------------------
Title:
------------------------------------
INSURED:
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PROMISSORY NOTE
Principal Amount to be adjusted from time to time on the last business day of
each calendar quarter and not to exceed the Premiums paid on the Policy, as
defined herein.
San Diego, California
Date:
----------------
FOR VALUE RECEIVED, the undersigned hereby unconditionally promises to
pay to the order of DATAWORKS CORPORATION, a California corporation (the
"Employer"), or its successors or assigns, at 0000 Xxxxxxx Xxxxxx Xxxxxxxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, or at such other place as the holder
hereof may designate in writing, in lawful money of the United States of America
and in immediately available funds, the principal sum as determined below
together with interest accrued from the date hereof on the unpaid principal at
the rate per annum which shall be the lowest rate available that shall avoid
imputed interest or original issue discount under all applicable sections of the
Internal Revenue Code, as determined by the Employer, or the maximum rate
permissible by law (which under the laws of the State of California shall be
deemed to be the laws relating to permissible rates of interest on commercial
loans), whichever is less, and which interest rate shall be determined as of the
Principal Repayment Date, as defined herein, as follows:
PRINCIPAL AMOUNT. The initial principal amount of this Note
shall be determined as of the date hereof and thereafter shall be the
amount as adjusted from time to time on the last business day of each
subsequent calendar quarter (the "Principal Adjustment Date"). The
principal amount at any time shall be the principal amount determined
on the later of the date hereof or the Principal Adjustment Date
coincident with or immediately preceding the date on which such
determination of principal amount is made. The principal amount of this
Note shall be the amount determined as of the relevant date under the
following formula:
A = B - C
where
A represents the principal amount
B represents the Premiums (as defined below) as of the
relevant date and C represents the Cash Surrender Value (as
defined below) as of the relevant date
For purposes of this Note, "Cash Surrender Value" means the cash
surrender value of the life insurance policy (the "Policy"), which is
the subject of the DATAWORKS CORPORATION SPLIT-DOLLAR INSURANCE
AGREEMENT entered into between Employer and the undersigned effective
______________, 1997 (the "Agreement"); and
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"Premiums" means the aggregate premiums paid by Employer on the Policy
(the "Premiums"). The Cash Surrender Value and the Premiums shall be
such amounts as are determined from records maintained by the Employer.
PRINCIPAL REPAYMENT. The outstanding principal amount
hereunder shall be due and payable in full upon the date the
undersigned terminates employment with Employer prior to the occurrence
of a Vesting Event ("Principal Repayment Date"). For purposes of this
Note, "Vesting Event" shall have the same meaning given such term in
the Agreement;
INTEREST PAYMENTS. Interest shall be payable in arrears on the
Principal Repayment Date and shall be calculated on the principal
amount determined on such date on the basis of a 365-day year for the
actual number of days elapsed;
provided, however, that upon the occurrence of a Vesting Event prior to a
Principal Repayment Date, this Note shall be canceled and no payments of
principal or interest shall be due hereunder.
This Note shall be canceled and the liability of the undersigned
hereunder shall be terminated as of the Principal Adjustment Date on which the
Cash Surrender Value equals or exceeds the Premiums.
The Employer shall have no right to accelerate this Note.
This Note may be prepaid at any time without penalty. All money paid
toward the satisfaction of this Note shall be applied first to the payment of
interest as required hereunder and then to the retirement of the principal.
The full amount of this Note is secured by a pledge of shares of Common
Stock of the Employer, and is subject to all of the terms and provisions of the
Pledge Agreement, of even date herewith between the undersigned and the
Employer.
The provisions of this Note shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. The
undersigned may not assign or transfer any of its rights or obligations under
this Note without the prior written consent of Employer.
The undersigned hereby waives presentment, protest and notice of
protest, demand for payment, notice of dishonor and all other notices or demands
in connection with the delivery, acceptance, performance, default or endorsement
of this Note.
The holder hereof shall be entitled to recover, and the undersigned
agrees to pay when incurred, all costs and expenses of collection of this Note,
including without limitation, reasonable attorneys' fees.
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This Note shall be governed by, and construed, enforced and interpreted
in accordance with, the laws of the State of California, excluding conflict of
laws principles that would cause the application of laws of any other
jurisdiction.
Signed
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STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT ("Pledge Agreement") is made by
_______________, an individual with a residence at
________________________________________________ ("Pledgor"), in favor of
DATAWORKS CORPORATION, a California corporation with its principal place of
business at 0000 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000 ("Pledgee"), and its successors and assigns.
WHEREAS, Pledgor has concurrently herewith executed that certain
Promissory Note (the "Note") in favor of Pledgee in the principal amount as
determined therein in accordance with the terms of the DATA WORKS CORPORATION
SPLIT-DOLLAR INSURANCE AGREEMENT between Pledgee and Pledgor; and
WHEREAS, Pledgee is willing to accept the Note from Pledgor, but only
upon the condition, among others, that Pledgor shall have executed and delivered
to Pledgee this Pledge Agreement and the Pledged Collateral (as defined below):
NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound, Pledgor hereby agrees as
follows:
1. As security for the full, prompt and complete payment and
performance when due (whether by stated maturity, or otherwise) of all
indebtedness of Pledgor to Pledgee created under the Note as determined
initially as of the execution date of the Note (all such indebtedness being the
"Liabilities"), together with, without limitation, the prompt payment of all
expenses, including, without limitation, reasonable attorneys' fees and legal
expenses, incidental to the collection of the Liabilities and the enforcement or
protection of Pledgee's lien in and to the collateral pledged hereunder, Pledgor
hereby pledges to Pledgee, and grants to Pledgee, a first priority security
interest in all of the following (collectively, the "Pledged Collateral"):
(a) ____________________________ (______) shares of Common
Stock of Pledgee represented by Certificates numbered
___________________________ (the "Pledged Shares"), and all dividends, cash,
instruments, and other property or proceeds from time to time received,
receivable, or otherwise distributed in respect of or in exchange for any or all
of the Pledged Shares;
(b) all voting trust certificates held by Pledgor evidencing
the right to vote any Pledged Shares subject to any voting trust; and
(c) such additional shares, and the certificates representing
such additional shares, and all dividends, cash, instruments, and other property
or proceeds from time to time received, receivable, or otherwise distributed in
respect of or in exchange for any or all of such shares, as may be necessary to
be added to the Pledged Shares in order that the total aggregate value of the
Pledged Shares is not less than the amount of the Liabilities (which additional
shares
1.
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shall be deemed to be part of the Pledged Shares). For purposes of this Section
1(c), the value of the Pledged Shares shall be determined by multiplying the
number of Pledged Shares by the market value of each Pledged Share. "Market
Value" shall mean, as of the relevant date, the public market price then in
effect. For purposes of this provision, the amount of the Liabilities and the
value of the Pledged Shares shall be determined on each Principal Adjustment
Date, as such term is defined in the Note, which occurs on or next following the
anniversary of the execution date of the Note.
The Pledged Collateral shall be held in Escrow by Xxxxxx X. Xxxxxxxx
("Escrow Agent"). The parties hereto shall enter into Joint Escrow Instructions
essentially in the form attached hereto as Exhibit A.
The term "indebtedness" is used herein in its most comprehensive sense
and includes any and all advances, debts, obligations and Liabilities
heretofore, now or hereafter made, incurred or created, whether voluntary or
involuntary and whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, and whether recovery upon such
indebtedness may be or hereafter becomes unenforceable.
2. At any time, without notice, and at the expense of Pledgor, Pledgee
in its name or in the name of its nominee or of Pledgor may, but shall not be
obligated to: (1) collect by legal proceedings or otherwise all dividends
(except cash dividends other than liquidating dividends), interest, principal
payments and other sums now or hereafter payable upon or on account of said
Pledged Collateral; (2) insure, process and preserve the Pledged Collateral; (3)
exercise as to such Pledged Collateral all the rights, powers and remedies of an
owner, except that so long as no default exists under the Note or hereunder
Pledgor shall retain all voting rights as to the Pledged Shares.
3. Pledgor agrees to pay prior to delinquency all taxes, charges, liens
and assessments against the Pledged Collateral, and upon the failure of Pledgor
to do so, Pledgee at its option may pay any of them and shall be the sole judge
of the legality or validity thereof and the amount necessary to discharge the
same.
4. At the option of Pledgee and without necessity of demand or notice,
all or any part of the indebtedness of Pledgor shall immediately become due and
payable irrespective of any agreed maturity, upon the happening of any of the
following events: (1) failure to keep or perform any of the terms or provisions
of this Pledge Agreement; (2) the levy of any attachment, execution or other
process against the Pledged Collateral; or (3) the insolvency, commission of an
act of bankruptcy, general assignment for the benefit of creditors, filing of
any petition in bankruptcy or for relief under the provisions of Title 11 of the
United States Code of, by, or against Pledgor.
5. In the event of the nonpayment of any indebtedness when due or upon
the happening of any of the events specified in the last preceding paragraph,
Pledgee may then, or at any time thereafter, at its election, apply, set off,
collect or sell in one or more sales, or take such steps as may be necessary to
liquidate and reduce to cash in the hands of Pledgee in whole
2.
16
or in part, with or without any previous demands or demand of performance or
notice or advertisement, the whole or any part of the Pledged Collateral in such
order as Pledgee may elect, and any such sale may be made either at public or
private sale at its place of business or elsewhere, or at any broker's board or
securities exchange, either for cash or upon credit or for future delivery;
provided, however, that if such disposition is at private sale, then the
purchase price of the Pledged Collateral shall be equal to the public market
price then in effect. Pledgee may be the purchaser of any or all Pledged
Collateral so sold and hold the same thereafter in its own right free from any
claim of Pledgor or right of redemption. Demands of performance, notices of
sale, advertisements and presence of property at sale are hereby waived, and
Pledgee is hereby authorized to sell hereunder any evidence of debt pledged to
it. Any sale hereunder may be conducted by any officer or agent of Pledgee.
6. The proceeds of the sale of any of the Pledged Collateral and all
sums received or collected by Pledgee from or on account of such Pledged
Collateral shall be applied by Pledgee to the payment of expenses incurred or
paid by Pledgee in connection with any sale, transfer or delivery of the Pledged
Collateral, to the payment of any other costs, charges, attorneys' fees or
expenses mentioned herein, and to the payment of the indebtedness or any part
hereof, all in such order and manner as Pledgee in its discretion may determine.
Pledgee shall then pay any balance to Pledgor.
7. Upon the transfer of all or any part of the indebtedness Pledgee may
transfer all or any part of the Pledged Collateral and shall be fully discharged
thereafter from all liability and responsibility with respect to such Pledged
Collateral so transferred, and the transferee shall be vested with all the
rights and powers of Pledgee hereunder with respect to such Pledged Collateral
so transferred; but with respect to any Pledged Collateral not so transferred
Pledgee shall retain all rights and powers hereby given.
8. Until all indebtedness shall have been paid in full the power of
sale and all other rights, powers and remedies granted to Pledgee hereunder
shall continue to exist and may be exercised by Pledgee at any time and from
time to time irrespective of the fact that the indebtedness or any part thereof
may have become barred by any statute of limitations, or that the personal
liability of Pledgor may have ceased.
9. Pledgee agrees that so long as no default exists under the Note or
hereunder, the Pledged Shares shall, upon the request of Pledgor, be released
from pledge as provided herein. The amount of such releases, if any, shall be
determined on each Principal Adjustment Date which occurs on or next following
the anniversary of the execution date of the Note. Such release from pledge
shall be at a rate equal to the number of whole shares of Pledged Shares
determined by dividing the decrease, if any, in the indebtedness on the Note as
determined on the later of the execution date of the Note or the Principal
Adjustment Date that occurred one calendar year preceding the Principal
Adjustment Date on which such determination occurs, and the indebtedness on the
Note as determined on the Principal Adjustment Date on which such determination
occurs, by the Market Value. For this purpose Market Value shall be determined
on the Principal Adjustment Date for which such determination occurs.
3.
17
10. In the event that the Note is canceled as provided in the Note, the
Liabilities shall be canceled and Pledgee shall deliver the Pledged Collateral
to Pledgor within five (5) days following the cancellation of the Note and the
receipt of Pledgor shall be a complete and full acquittance for the Pledged
Collateral so delivered, and Pledgee shall thereafter be discharged from any
liability or responsibility therefor.
11. Pledgee may at any time deliver the Pledged Collateral or any part
thereof to Pledgor and the receipt of Pledgor shall be a complete and full
acquittance for the Pledged Collateral so delivered, and Pledgee shall
thereafter be discharged from any liability or responsibility therefor.
12. The rights, powers and remedies given to Pledgee by this Pledge
Agreement shall be in addition to all rights, powers and remedies given to
Pledgee by virtue of any statute or rule of law. Any forbearance or failure or
delay by Pledgee in exercising any right, power or remedy hereunder shall not be
deemed to be a waiver of such right, power or remedy, and any single or partial
exercise of any right, power or remedy hereunder shall not preclude the further
exercise thereof; and every right, power and remedy of Pledgee shall continue in
full force and effect until such right, power or remedy is specifically waived
by an instrument in writing executed by Pledgee.
13. If any provision of this Pledge Agreement is held to be
unenforceable for any reason, it shall be adjusted, if possible, rather than
voided in order to achieve the intent of the parties to the extent possible. In
any event, all other provisions of this Pledge Agreement shall be deemed valid
and enforceable to the full extent possible.
14. This Pledge Agreement shall be governed by, and construed in
accordance with, the laws of the State of California as applied to contracts
made and performed entirely within the State of California by residents of such
State.
15. This Pledge Agreement shall inure to the benefit of Pledgee's
successors and assigns. Pledgor shall not assign this Pledge Agreement without
Pledgee's prior written consent.
Dated:
-------------------
PLEDGOR
---------------------------
Printed Name:
4.
18
EXHIBIT A
ESCROW INSTRUCTIONS
5.
19
EXHIBIT B
PROMISSORY NOTE
6.
20
JOINT ESCROW INSTRUCTIONS
Xxxxxx X. Xxxxxxxx
Chief Financial Officer
DataWorks Corporation
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Dear Sir:
As Escrow Agent for both DATAWORKS CORPORATION, a California
corporation ("Employer") and ___________________ ("Employee"), you are hereby
authorized and directed to hold the documents delivered to you pursuant to the
terms of that certain Stock Pledge Agreement ("Agreement") dated as of
_____________________, 1997, to which a copy of these Joint Escrow Instructions
is attached as Exhibit A, in accordance with the following instructions:
1. In the event Employer or an assignee elects to apply, set off,
collect, sell in one or more sales, or liquidate and reduce to cash in the hands
of Employer in whole or in part, (collectively, "foreclose"), the whole or any
part of the shares held in escrow, Employer or its assignee will give to
Employee and you a written notice specifying the number of shares of stock to be
foreclosed upon and the time for a closing thereunder at the principal office of
Employer. Employee and Employer hereby irrevocably authorize and direct you to
close the transaction contemplated by such notice in accordance with the terms
of said notice.
2. At the closing for the foreclosure, you are directed (a) to date the
stock assignments necessary for the transfer in question, (b) to fill in the
number of shares being transferred, and (c) to deliver the same, together with
the certificate evidencing the shares of stock to be transferred, to the
transferee designated in the written notice, including, without limitation,
Employer, against the simultaneous delivery to you of suitable acknowledgment of
cancellation of indebtedness for the number of shares of stock being foreclosed
upon pursuant to the default on the Note, as defined in the Agreement.
3. The Pledge Agreement provides for a release of shares in the event
the amount of the indebtedness on the Note (as defined in the Agreement) is
reduced. In the event Employee elects to exercise the right to have shares
released from Escrow, Employee will give to Employer and you a written notice
specifying the number of shares of stock to be released from escrow pursuant to
the Agreement and the time for a closing thereunder at the principal office of
Employer. Employer and Employee hereby irrevocably authorize and direct you to
close the transaction contemplated by such notice in accordance with the terms
of said notice.
1.
21
4. At the closing for the release from escrow, you are directed (a) to
date the stock assignments necessary for the transfer in question, (b) to fill
in the number of shares being released from escrow, and (c) to deliver the same,
together with the certificate evidencing the shares of stock to be transferred,
to Employee, or to Employee's transferee as specified in the notice, against the
simultaneous delivery to you of suitable acknowledgment of reduction of
indebtedness for the number of shares of stock being released from escrow
pursuant to the reduction of indebtedness under the Note.
5. Employee irrevocably deposits with you any certificates evidencing
shares of stock to be held by you hereunder and any additions and substitutions
to said shares as specified in the Agreement. Employee does hereby irrevocably
constitute and appoint you as his attorney-in-fact and agent for the term of
this escrow to execute with respect to such securities all documents necessary
or appropriate to make such securities negotiable and complete any transaction
herein contemplated, including but not limited to any appropriate filing with
state or government officials or bank officials. Subject to the provisions of
this paragraph 5, Employee shall exercise all rights and privileges of a
shareholder of the Employer while the stock is held by you.
6. This escrow shall terminate upon the foreclosure of all of the stock
held in escrow, the payment in full on the Note, or the cancellation of the
Note, as provided in the Note, whichever occurs first.
7. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to Employee,
you shall deliver all of the same to Employee and shall be discharged of all
further obligations hereunder.
8. Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties hereto.
9. You shall be obligated only for the performance of such duties as
are specifically set forth herein and may rely and shall be protected in relying
or refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties. You
shall not be personally liable for any act you may do or omit to do hereunder as
Escrow Agent or as attorney-in-fact for Employee while acting in good faith and
in the exercise of your own good judgment, and any act done or omitted by you
pursuant to the advice of your own attorneys shall be conclusive evidence of
such good faith.
10. You are hereby expressly authorized to disregard any and all
warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law, and are hereby
expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case you obey or comply with any such order, judgment or decree of any
court, you shall not be liable to any of the parties hereto or to any other
person, firm or corporation by reason of such compliance, notwithstanding any
such order, judgment or decree being subsequently reversed, modified, annulled,
set aside, vacated or found to have been entered without jurisdiction.
2.
22
11. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
12. You shall not be liable for the outlawing of any rights under any
statute of limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
13. Your responsibilities as Escrow Agent hereunder shall terminate if
you shall cease to be Chief Financial Officer or if you shall resign by written
notice to each party. In the event of any such termination, Employer shall
appoint its Chief Financial Officer as successor Escrow Agent, and Employee
hereby confirms the appointment of such successor as his attorney-in-fact and
agent to the full extent of your appointment.
14. If you reasonably require other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
15. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to retain in
your possession without liability to anyone all or any part of said securities
until such dispute shall have been settled either by mutual written agreement of
the parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
16. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery, including
delivery by express courier, or four (4) days after deposit in the United States
Post Office, by registered or certified mail with postage and fees prepaid,
addressed to each of the other parties entitled to such notice at the following
addresses, or at such other addresses as a party may designate by ten days'
advance written notice to each of the other parties hereto.
EMPLOYER: DataWorks Corporation
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
EMPLOYEE:
----------------------------
----------------------------
----------------------------
3.
23
ESCROW AGENT: Xxxxxx X. Xxxxxxxx
Chief Financial Officer
DataWorks Corporation
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
17. By signing these Joint Escrow Instructions, you become a party
hereto only for the purpose of said Joint Escrow Instructions; you do not become
a party to the Agreement.
18. You shall be entitled to employ such legal counsel and other
experts (including, without limitation, the firm of Xxxxxx Godward LLP) as you
may deem necessary properly to advise you in connection with your obligations
hereunder. You may rely upon the advice of such counsel, and you may pay such
counsel reasonable compensation therefor. The Employer shall be responsible for
all fees generated by such legal counsel in connection with your obligations
hereunder.
19. This instrument shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
20. This Agreement shall be governed by and interpreted and determined
in accordance with the laws of the State of California, as such laws are applied
by California courts to contracts made and to be performed entirely in
California by residents of that state.
Very truly yours,
DATAWORKS CORPORATION
By:
-----------------------
Its:
-----------------------
EMPLOYEE:
---------------------------
ESCROW AGENT:
--------------------------------
XXXXXX X. XXXXXXXX
4.
