EXHIBIT 10.2
INFONET SERVICES CORPORATION
1998 EMPLOYEE STOCK PURCHASE PLAN
LOAN, SECURITY AND PLEDGE AGREEMENT
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This LOAN, SECURITY AND PLEDGE AGREEMENT (this "Agreement") is entered into
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as of January 1, 1999 (the "Effective Date") by and between
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_____________________, an individual (the "Borrower"), and Infonet Services
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Corporation, a Delaware corporation (the "Company"; the Borrower and the
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Company, collectively, the "Parties").
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R E C I T A L S
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WHEREAS, the Borrower is an employee of the Company and has been selected
to participate in the Company's 1998 Employee Stock Purchase Plan (the "Plan").
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WHEREAS, the Company is willing to loan the Borrower up to the aggregate
sum set forth in Item 2 of Schedule 1 of this Agreement for the purpose of
buying the Company's Class C, $.01 par value, shares (the "Shares") under the
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Plan, subject to the terms and conditions of this Agreement and the Plan.
WHEREAS, the Borrower wishes to borrow the aggregate sum set forth in Item
2 of Schedule 1 of this Agreement from the Company for the purpose of purchasing
the number of Shares set forth in Item 3 of Schedule 1 of this Agreement
pursuant to the Plan, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual promises herein
made, and in consideration of the representations, warranties, and covenants
herein contained, the Parties agree as follows.
T E R M S
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1. Loan. The Company hereby agrees to loan the Borrower the aggregate
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principal sum set forth in Item 2 of Schedule 1 of this Agreement for the
purpose of purchasing the number of Shares set forth in Item 3 of Schedule 1 of
his Agreement pursuant to the terms and conditions of the Plan ("Loan"). The
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Loan shall bear interest from the Effective Date, until fully paid, at the rate
of five percent (5%) per annum computed on the basis of a 365-day year. The
Borrower agrees to repay the Loan, together with all accrued interest thereon,
on January 1, 2002 (the "Maturity Date"); provided, however, that, if the shares
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of Stock, or a class of securities into which such shares are convertible, are
sold in an underwritten public offering after January 1, 2000 but before the
Maturity Date, the Maturity Date shall be extended by the period of time, if
any, between January 1, 2000 and the date of such offering.
2. Prepayment.
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2.1 Permitted. The Borrower shall have the privilege of prepaying the
Loan in whole or in part, without penalty or premium at any time. All
Loan payments hereunder shall be applied first to interest, then to
principal.
2.2 Mandatory. In the event that (a) the Company exercises its call right
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under Section 7.2 of the Plan or (b) the Borrower exercises his or her
put right under Section 7.3 of the Plan, the proceeds to the Borrower
thereof shall be used to prepay the Loan. Such prepayments shall be
settled at the Call Closing or the Put Closing (as such terms are
defined in the Plan), as the case may be. All Loan payments hereunder
shall be applied first to interest, then to principal.
3. Security. In order to secure the repayment of the Loan, the Borrower
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hereby grants to the Company a security interest in the property described below
on the terms and conditions set forth in this Agreement. The property subject to
the security interest (the "Collateral") is as follows:
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3.1 all of Borrower's accounts (including all rights under contracts to
sell or lease goods or render services, whether or not earned by
performance, that are not evidenced by an instrument or chattel paper,
and including contract rights), draft acceptances, notes, securities
(including the Shares) and other instruments, chattel paper,
documents, general intangibles and all other forms of receivables, and
all guaranties and securities therefor;
3.2 all of the Borrower's tangible personal property;
3.3 all property of the types described in Section 3.1 and Section 3.2
that at any time after the Effective Date is acquired by the Borrower;
and
3.4 all proceeds of the sale or other disposition of any of the property
described in Section 3.1, Section 3.2 or Section 3.3.
4. Pledge of Shares. The Borrower hereby (a) pledges and deposits as security
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with the Company the Shares and delivers to the Company certificates therefore,
(b) assigns, transfers, hypothecates, mortgages, charges and sets over to the
Company all of the Borrower's right, title and interest in and to such Shares
(and in and to the certificates or instruments evidencing such Shares), to be
held by the Company upon the terms and conditions set forth in this Agreement,
and (c) hereby irrevocably constitutes and appoints the Secretary of the Company
as attorney to transfer such Shares on the Company's books, with full power of
substitution.
4.1 Dividends. Until payment in full at maturity of the Loan, all
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dividends and other amounts received by the Company as a result of the
Company's record ownership of the Shares (if any) shall be applied to
the repayment of the Loan.
4.2 Voting Rights. Until payment in full at maturity of the Loan, and as
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long as the Borrower is not in default in the performance of any of
the terms of this Agreement, the Borrower shall have the right (if
any) to vote the Shares on all corporate questions; provided, however,
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that no vote shall be cast on any action
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taken which would violate or be inconsistent with the terms of this
Agreement or which would have the effect of materially impairing the
position or interests of the Company. The Company shall execute due
and timely proxies in favor of the Borrower to this end.
4.3 Adjustments. In the event that, prior to payment in full at maturity
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of the Loan, any share dividend, reclassification, readjustment, or
other change is declared or made in the capital structure of the
Company, all new, substituted, and additional Shares or other
securities issued by reason of any change shall be held by the Company
in addition to, or in substitution for, as the case may be, and in the
same manner as the Shares originally pledged under this Agreement.
4.4 Warrants and Rights. In the event that, prior to payment in full at
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maturity of the Loan, subscription warrants or any other rights or
pledges shall be issued in connection with the Shares, such warrants,
rights, and pledges shall be immediately assigned by the Company to
the Borrower, and if exercised by the Borrower, all new Shares or
other securities so acquired by the Borrower shall be immediately
assigned to the Company to be held in the same manner as the Shares
originally pledged under this Agreement.
4.5 Repayment of the Loan. On payment in full at maturity of the Loan,
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the Company shall transfer to the Borrower all of the Shares and all
rights received by the Company as a result of the Company's record
ownership of the Shares.
4.6 Default. In the event that the Borrower defaults in the performance
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of any of the terms of this Agreement, the Company shall (a) be
entitled to vote all or any part of the Shares and otherwise act with
respect to the Shares as if it were the outright owner thereof
(Borrower hereby irrevocably constituting and appointing Company the
proxy and attorney-in-fact of the Borrower) and (b) have the rights
and remedies provided in the California Commercial Code. In this
connection, the Company may, on five days' written notice to the
Borrower, and without liability for any diminution in price that may
have occurred, sell the Shares in a commercially reasonable manner and
for such a commercially reasonable price as the Company may determine.
At any bona fide public sale, the Borrower shall be free to purchase
all of any part of the Shares. Out of the proceeds of any sale the
Company may retain an amount equal to outstanding balance of the Loan,
plus the amount of the expenses of the sale, and shall pay any balance
of such sale to the Borrower. If the proceeds of the sale are
insufficient to cover the outstanding balance of the Loan plus
expenses of the sale, the Borrower shall remain liable to the Company
for any deficiency, in accordance with the provisions set forth in
Commercial Code Section 9504.
5. Financing Statements. The Borrower shall execute any financing statements
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regarding the Collateral which the Company may request at any time prior to the
repayment of the Loan.
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6. Representations and Warranties of the Borrower. The Borrower represents
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and warrants to the Company that the statements contained in this Section 6 are
correct and complete as of the Effective Date.
6.1 Authorization of Transaction. The Borrower has full power and
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authority to execute and deliver this Agreement and to perform the Borrower's
obligations hereunder. This Agreement has been duly executed and delivered by
the Borrower and constitutes the valid and binding obligation of the Borrower,
enforceable in accordance with its terms.
6.2 Noncontravention. Neither the execution, deliver or performance of
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this Agreement by the Borrower, nor the consummation of the transactions
contemplated hereby, will (a) violate any constitution, statute, regulation,
rule, injunction, judgment, order, arbitration award, decree, ruling, charge, or
other restriction of any government, governmental agency, or court to which the
Borrower is subject or (b) require a consent, approval or waiver from, or notice
to, any party to a contract in which Borrower is a party.
6.3 Value of the Collateral. The Collateral, other than the Shares, has a
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fair market value at least equal to the amount of the Loan.
6.4 Schedule 1. The information set forth on Schedule 1 is true and
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correct.
7. Amendments; Borrower and Lien Not Released. From time to time, the Company
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may, at the Company's option, without giving notice to or obtaining the consent
of the Borrower, the Borrower's successors or assigns or of any other lienholder
or guarantors, without liability on the Company's part, and notwithstanding the
Borrower's breach of any covenant or agreement of the Borrower in this
Agreement, extend the time for repayment of the Loan or any part thereof,
discharge the Loan in full or in part, modify the terms and the time of payment
of the Loan, release from the lien of this Agreement any part of the Collateral,
take or release other or additional security, join in any extension or
subordination agreement. Any actions taken by the Company pursuant to the terms
of this Section shall not affect the obligation of the Borrower or the
Borrower's successors or assigns to pay the sums secured by this Agreement and
to observe the covenants of the Borrower contained herein, and shall not affect
the lien or the priority of the lien created hereby on the Collateral.
8. Forbearance by Company Not a Waiver. Any forbearance by the Company in
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exercising any right or remedy hereunder, or otherwise afforded by applicable
law, shall not be a waiver of or preclude the exercise of any right or remedy.
The acceptance by the Company of payment of any sum secured by this Agreement
after the due date of such payment shall not be a waiver of the Company's right
to either require prompt payment when due of all other sums so secured or to
declare a default for failure to make prompt payment.
9. Miscellaneous.
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9.1 No Third-Party Beneficiaries. This Agreement shall not confer any
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rights or remedies upon any person other than the Parties and their respective
successors and permitted assigns.
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9.2 Entire Agreement. This Agreement (including the documents referred to
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herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by
or amount the Parties, written or oral, to the extent they have
related in any way to the subject matter hereof.
9.3 Succession and Assignment. This Agreement shall be binding upon and
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inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this
Agreement or any of his or its rights, interests, or obligations
hereunder without the prior written approval or the other Party.
9.4 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
9.5 Headings. The section headings contained in this Agreement are
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inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
9.6 Notices. All notices, requests, demands, claims, and other
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communications hereunder will be in writing. Any notice, request,
demand, claim, or other communication hereunder shall be deemed duly
given (a) if sent by facsimile, upon receipt by the sending party of a
transmission receipt confirmation and (b) if sent by registered or
certified mail, return receipt requested, postage prepaid, two
business days after it is sent, in each case addressed to the intended
recipient as set forth below:
If to the Borrower, as set forth in Item 4 of Schedule 1.
If to the Company, as follows:
Infonet Services Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set
forth above using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail,
or electronic mail), but no such notice, request, demand, claim, or
other communication shall be deemed to have been duly given unless and
until it actually is received by the intended recipient. Any Party
may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the
other Party notice in the manner herein set forth.
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9.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF CALIFORNIA WITHOUT
GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER OF THE STATE OF CALIFORNIA OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN
THE STATE OF CALIFORNIA. THE PARTIES EACH HEREBY AGREE THAT ANY
ACTION, SUIT, ARBITRATION OR OTHER PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE RELATIONSHIP CREATED HEREBY SHALL BE
CONDUCTED ONLY IN LOS ANGELES COUNTY, CALIFORNIA. EACH OF THE PARTIES
HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS AND SUBMITS TO THE
EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN THE UNITED STATES
DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA AND IN THE
SUPERIOR COURT AND MUNICIPAL COURT FOR LOS ANGELES COUNTY IN ANY LEGAL
ACTION, EQUITABLE SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR THE RELATIONSHIP BETWEEN THE PARTIES CREATED
HEREBY (AND EACH OF THE PARTIES AGREES NOT TO COMMENCE ANY ACTION,
SUIT OR PROCEEDING RELATING THERETO EXCEPT IN SUCH COURTS AND NOT TO
PLEAD OR CLAIM THAT ANY SUCH COURT IS AN INCONVENIENT OR OTHERWISE
IMPROPER OR INAPPROPRIATE FORUM).
9.8 Amendments and Waivers. Except as provided in Section 7, no amendment
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of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by the Parties. No waiver by any Party
of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to
any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
9.9 Severability. Any term or provision of this Agreement that is invalid
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or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction.
9.10 Expenses. Each of Party will be bear its own costs and expenses
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(including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby.
9.11 Incorporation of Schedule. Schedule 1 to this Agreement is
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incorporated herein by reference and made a part hereof.
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9.12 References to Sections. Unless otherwise clear from the context,
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references to "Sections" are to the sections of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the Effective Date.
Infonet Services Corporation
By:____________________________
Name:
Title:
The Borrower
____________________________
Name
Consent of Borrower's spouse (necessary if box (a) of Item 5 of Schedule 1 is
checked)
________________________________
Name:
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Item 1. Name of Borrower: ______________________
Item 2. Amount of Loan: ______________________
Item 3. Number of Shares purchased under the Plan: ______________________
Item 4. Borrower's notice information:
______________________
______________________
______________________
______________________
Facsimile: ______________________
Item 5. I am (a) [_] married
(b) [_] not married
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