Exhibit 99.6
EXHIBIT F
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS
TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED.
PUT OPTION AGREEMENT
THIS PUT OPTION AGREEMENT (the "Agreement") is made as of August 31,
1998 between each entity (each in their individual capacity) as set forth for
the investors on Schedule A (the "Investors") and Xxxxxxxxx Xxxxxx ("Optionee").
THE PARTIES AGREE AS FOLLOWS:
1. PUT OPTION.
1.1 GRANT OF PUT OPTION; EXERCISE PRICE. Subject to the terms
and conditions herein set forth, Optionee is hereby granted the right (the "Put
Option") to require investors to purchase from Optionee the number of shares of
the Common Stock (the "Option Shares") of E-Loan, Inc. (the "Issuer") as set
forth for such Investors on Schedule A at an aggregate exercise price (the "Put
Exercise Price") as set forth for such Investors on Schedule A, which Put
Exercise Price shall increase at the rate of Seven Percent (7.00%) per annum
compounded annually from the date of this Agreement (the "Annual Increase"), to
be due and payable upon exercise of such Put Option, payable by Investors in
cash, wire transfers, cancellation of indebtedness or a combination of the
foregoing as provided in Section 1.4 hereof. The number of shares of Common
Stock and other property subject to the Put Option shall be subject to
adjustment as provided in Section 2.1.
1.2 PURCHASE PRICE OF THE PUT OPTION. In consideration of the
grant of the Put Option to Optionee by Investors, Optionee shall cause to be
paid to Investors upon execution and delivery of one or more fully executed
counterparts of this Agreement an aggregate amount as set forth for such
Investors on Schedule A (the "Put Option Purchase Price"), payable in cash or by
wire transfers.
1.3 FULL EXERCISE; TIME OF EXERCISE. The Put Option may only
be exercised in whole and not for less than all of the shares of Common Stock
subject to the Put Option. The Put Option shall not be exercisable at any point
during the four (4) year and four (4) month period following the date of this
Agreement (the "Blackout Period"); provided, however, that upon the occurrence
of an Event of Default and acceleration by Lender of the repayment of the Loan
as set forth in Section 1.4 of the Loan and Pledge Agreement of even date
herewith between Investors and Optionee (the "Loan Agreement"), the Put Option
shall become fully
exercisable. Commencing upon the termination of the Blackout Period, the Put
Option may be exercised by Optionee at any point during the following eleven
(11) month period (the "Put Option Exercise Period"). The Put Option shall
expire upon the earlier of (i) the expiration of the Put Option Exercise Period,
(ii) the exercise of that certain Call Option by Investors pursuant to a Call
Option Agreement of even date herewith between Optionee and Investors or (iii)
transfer of the Shares (as such term is defined in the Loan Agreement) or
Collateral (as such term is defined in the Loan Agreement) from Borrower to
Lender and its assigns pursuant to the Loan Agreement.
1.4 MANNER OF EXERCISING PUT OPTION. The Put Option shall be
exercisable by Optionee or any permitted assigns only by surrender of a
completed and fully executed Put Option Subscription Form (in the form attached
hereto as Exhibit A) to Investors and Escrowholder (as defined below), with a
copy to Issuer. Upon proper exercise of the Put Option, Investors shall deliver
the fully executed Put Option Subscription Form to Pledgeholder to hold in
Pledge (as such terms are defined in the Loan Agreement) if the indebtedness
secured under the Loan Agreement has not been satisfied in full, or if such
indebtedness has been satisfied in full, Investors shall pay to Optionee an
aggregate amount as set forth for such Investors on Schedule A plus the Annual
Increase (regardless of any adjustments pursuant to Section 2.1 in the number of
shares of other assets subject to the Put Option). Such payment may be effected
in cash, by wire transfers or by cancellation of indebtedness owed to Investors
by Optionee, including cancellation of the principal and/or interest on that
certain loan pursuant to the Loan Agreement. The Put Option shall be deemed to
have been exercised immediately prior to the close of business on the date of
surrender of the Put Option Subscription Form for exercise as provided in this
Section, and any person(s), entity or entities entitled to receive the shares of
Common Stock issuable upon exercise shall be treated for all purposes as the
holder of record of such shares as of the close of business on such date. As
promptly as practicable on or after such date, Escrowholder shall cause to be
issued and delivered to the person(s), entity or entities entitled to receive
the same a certificate or certificates for the number of shares of Common Stock
issuable upon such exercise.
1.5 RESTRICTED TRANSFER OF PUT OPTION. This Put Option shall
not be freely transferable by Optionee except by testamentary bequest, or
otherwise in connection with Optionee's estate planning or by operation of law.
2. ADJUSTMENT OF NUMBER OF SHARES; SUBSTITUTE SHARES.
2.1 CHANGES IN CAPITAL STRUCTURE. The number and type of
shares or other property transferable by Optionee upon exercise of the Put
Option by Optionee shall be equitably adjusted in the event of any stock split,
combination, stock dividend or recapitalization, or conversion or exchange for
other securities or property as a result of a merger, sale, liquidation or
reorganization of the Issuer or the issuer of any Distribution or Auxiliary
Securities (as defined in Section 2.2), or other similar change in capital
structure of the Issuer or the issuer of any Distribution or Auxiliary
Securities or as a result of any other disposition or conversion of the Option
Shares or the proceeds therefrom (including without limitation, any Distribution
or Auxiliary Securities). Nothing in this Section 2.1, or elsewhere in this
Agreement (except for the Annual Increase described in Section 1.1), however,
shall have the effect of altering the
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aggregate Put Exercise Price as set forth for such Investors on Schedule A
payable to Optionee upon exercise of the Put Option.
2.2 DISTRIBUTIONS AND AUXILIARY SECURITIES. If any
Distribution (as hereinafter defined) of securities or other property issued in
connection with a change or transaction contemplated by Section 2.1 ("Auxiliary
Securities), with respect to the Option Shares, shall be received by Optionee,
Optionee shall, within five days of receipt, deliver the cash, certificates or
other instruments evidencing title to such Distribution or Auxiliary Securities,
together with appropriate instruments of transfer, to Escrowholder to be held in
the Escrow pursuant to Section 3 herein. Any Distribution or Auxiliary
Securities shall become a part of the Option Shares to which it relates, and
shall be transferred to Investors without extra cost upon the exercise of the
Put Option. A "Distribution" means any property receivable by optionee as owner
of any Option Shares, or as owner of any Distribution or Auxiliary Securities,
and shall include, without limitation, dividends, whether in cash or other
property, such as securities or contract rights, cash, securities or other
property arising from a reorganization, recapitalization, stock split,
liquidation, sale or merger of the Issuer or the issuer of any security which is
a Distribution or Auxiliary Security, or otherwise; provided, however, that (i)
cash dividends in any calendar year aggregating less than five percent (5%) of
the Call Exercise Price (as such term is defined in the Call Option Agreement)
shall be the sole property of Optionee and shall not be deemed a Distribution,
and (ii) securities or other property received in connection with a change
contemplated by Section 2.1 for which appropriate adjustments are made pursuant
thereto shall not be deemed a Distribution.
2.3 OTHER ADJUSTMENTS. No adjustment will be made with respect
to the securities or other property underlying the exercise of the Put Option on
account of dividends or other distribution of cash or property on Preferred
Stock of the Issuer.
2.4 PURCHASE RIGHTS OF SHARES. At any time prior to the
expiration of the Put Option in which Issuer or the issuer of any Distribution,
Auxiliary Securities or other proceeds from the Option Shares proposes to offer
any shares of, or securities convertible into or exercisable for any shares of,
any class of its capital stock, the following provisions shall apply:
(a) RIGHTS NOTICE. Optionee shall give notice (the
"Rights Notice") to Investors of any right ("Right") to purchase additional
shares or other securities granted to Optionee and arising out of Optionee's
ownership of any Option Shares, Distributions, Auxiliary Securities or other
proceeds from the Option Shares, such Rights Notice to be given within five days
after Optionee becomes aware of the existence of any Right. Each Rights Notice
shall state the terms of the Right, including the expiration date for the
exercise of the Right, shall state whether the Issuer will allow assignment of
the Right to the Investors, and shall be accompanied by the notice received by
Optionee advising of the existence of the Right.
(b) RIGHTS EXERCISE NOTICE. Investors shall have ten
(l0) business days after receipt of a Rights Notice within which to give notice
(the "Rights Exercise Notice") to Optionee that Investors wish Optionee to (i)
assign all or a portion of such Right to Investors, and/or (ii) exercise all or
any portion of the Right. If Investors request an assignment, Optionee shall,
promptly and without further consideration, assign to Investors the portion of
the Right specified in the Rights Exercise Notice. If Investors request Optionee
to exercise all or any
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portion of the Right, and provides to Optionee the consideration required to be
paid in connection with the exercise of the Right prior to the expiration date
of the Right, then Optionee shall exercise the Right and immediately transfer,
assign and deliver to Investors the securities received upon exercise. Investors
shall, if requested, make the representations and warranties set forth in
Section 6 with respect to the securities so delivered or such other
representations and warranties as may be required by the issuer of the
securities.
(c) OPTIONEE'S RIGHT TO EXERCISE. If investors fail
to give a Rights Exercise Notice in accordance with subsection (b) above with
respect to any Right, or portion of a Right, Optionee shall be free to exercise
or assign such Right or portion of a Right.
2.5 RIGHT TO SUBSTITUTE SHARES. At any time prior to the
exercise of the Put Option, Optionee may upon notice to Escrowholder and with
written consent of Investors, which consent to be given or withheld in
Investors' sole discretion, deliver to Escrowholder as substitute for the Option
Shares, certificates for any shares of the Common Stock of Issuer which are (i)
owned by Optionee free of any lien, encumbrance, charge or claim of any third
party and not then held in Escrow and (ii) in no manner whatsoever more
restricted or limited, with respect to transfer by Investors, than the Option
Shares for which such shares are substituted. Each certificate for such
substituted Option Shares shall be accompanied by a duly executed blank
Assignment Separate from Certificate.
3. ESCROW.
3.1 CREATION OF ESCROW. Optionee and Investors hereby appoint
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx (the "Escrowholder") to act as Escrowholder for
them in accordance with this Agreement. Optionee will, concurrently with the
delivery of this Agreement, deliver the stock certificates listed on Schedule A,
together with a duly executed blank Assignment Separate from Certificate (in the
form attached hereto as Exhibit B) for each such certificate, to Escrowholder,
such documents to be held in escrow (the "Escrow") pursuant to the terms of this
Section 3.
3.2 DUTIES UPON EXERCISE OF PUT OPTION. If, prior to the
expiration of the Put Option, Escrowholder is given a Put Option Subscription
Form, then Escrowholder shall as soon as practicable (i) date the Assignment
Separate from Certificate necessary for the transfer in question, (ii) fill in
the number of shares being transferred and (iii) deliver to Investors the
Assignment, together with the certificate(s) for the number of Option Shares
being transferred, possession of the Distributions and Auxiliary Securities with
respect to such Option Shares and all instruments necessary to transfer title to
such Option Shares, Distributions and Auxiliary Securities from Optionee to
Investors; provided, however, that Escrowholder's duties hereunder are subject
to the cooperation of Optionee, Issuer and Issuer's transfer agent or counsel
with respect to furnishing to Escrowholder all necessary stock certificates and
other related instruments as appropriate.
3.3 TERM OF ESCROW. The Escrow shall continue until Optionee
and Investors have certified to Escrowholder that the Put Option has expired or
has been exercised. Optionee agrees to advise Escrowholder from time to time,
upon request, of the status of the rights and obligations of Optionee under this
Agreement.
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3.4 ATTORNEY-IN-FACT; ADDITIONAL STOCK ASSIGNMENTS. Optionee
hereby irrevocably constitutes and appoints Escrowholder as Optionee's
attorney-in-fact and agent for the term of this Escrow to execute, with respect
to such securities or other property as are deposited with Escrowholder
hereunder, all documents necessary or appropriate to make such securities or
other property negotiable and complete any transaction herein contemplated.
Optionee shall deliver to Escrowholder from time to time such number of stock
assignments separate from certificate or other documents duly executed by
Optionee as may be reasonably requested by Investors or Escrowholder.
3.5 RETURN OF PROPERTY. If at the time of termination of the
Escrow, Escrowholder has in Escrowholder's possession any documents, securities,
or other property belonging to Optionee, Escrowholder shall deliver all of same
to Optionee and shall be discharged of all further obligations hereunder.
3.6 SPECIAL INSTRUCTIONS TO ESCROWHOLDER. Optionee hereby
instructs Escrowholder, as Pledgeholder pursuant to the Loan Agreement and as
Escrowholder pursuant to the Call Option Agreement of even date herewith between
the Optionor and the Investors, that the escrow provisions of the Loan Agreement
and Call Option Agreement shall control any conflicts or inconsistencies between
the escrow provisions of this Put Option Agreement and such Loan Agreement and
Call Option Agreement. Optionee further instructs Escrowholder to release the
Option Shares, Distributions and Auxiliary Securities from Escrow under this
Agreement upon exercise of the Call Option (as such term is defined in the Call
Option Agreement) or as required pursuant to the Loan Agreement to satisfy the
Obligations (as such term is defined in the Loan Agreement).
3.7 DUTIES; MODIFICATION OF DUTIES. Escrowholder shall carry
out Escrowholder's duties hereunder to the best of Escrowholder's ability and
shall be liable only for gross negligence or willful misconduct. Escrowholder's
duties hereunder may be altered, amended, modified or revoked only by a written
instrument signed by Investors, Optionee and Escrowholder.
3.8 OBLIGATIONS. Escrowholder 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 Escrowholder to be genuine and to have been signed or
presented by the proper party or parties. Escrowholder shall not be personally
liable for any act Escrowholder may do or omit to do hereunder as Escrowholder
or as attorney-in-fact for Optionee while acting in good faith and in the
exercise of Escrowholder's own good judgment, and any act done or omitted by
Escrowholder pursuant to the advice of Escrowholder's own attorneys shall be
conclusive evidence of such good faith.
3.9 AUTHORIZATION TO ACT. Escrowholder is 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 is hereby expressly authorized to comply with and obey
orders, judgments or decrees of any court. In case Escrowholder obeys or
complies with any such order, judgment or decree of any court, Escrowholder
shall not be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such
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compliance, notwithstanding any such order, judgment or decree being
subsequently reversed, modified, annulled, set aside, vacated or found to have
been entered without jurisdiction.
3.10 AUTHORIZATION TO INVEST. All cash distributions received
by Escrowholder pursuant to this Agreement and designated as a Distribution or
Auxiliary Security and which are to be retained in escrow by Escrowholder for
more than fifteen (15) days shall be invested in an interest bearing savings
account specified by Investors and the interest thereon shall constitute a part
of such Distribution or Auxiliary Securities, as applicable.
3.11 SUBSTITUTION OF SHARES. If Escrowholder receives (i)
certificates for substitute Option Shares, (ii) an assignment separate from
certificate for each such certificates, and (iii) the consent of Investors, all
in accordance with Section 2.5 above, Escrowholder shall deliver to Optionee the
stock certificates for which Escrowholder has received substitute certificates.
3.12 BANKRUPTCY. Bankruptcy, insolvency, or dissolution or any
party hereto shall not affect Escrowholder's performance hereunder.
3.13 STATUTE OF LIMITATIONS. Escrowholder shall not be liable
for the lapse of any rights because of any statute of limitations applicable
with respect to this Agreement or any documents deposited with Escrowholder.
3.14 LEGAL COUNSEL. Escrowholder shall be entitled to employ
such legal counsel and other experts as Escrowholder may deem necessary properly
to advise Escrowholder in connection with Escrowholder's obligations and may pay
such counsel reasonable compensation therefor, for which Escrowholder shall be
reimbursed by Investors.
3.15 TERMINATION OF DUTIES SUCCESSOR. Escrowholder's
responsibilities as Escrowholder hereunder shall terminate if (i) Escrowholder
shall resign by thirty (30) days written notice to Optionee and Investors, (ii)
Optionee and Investors jointly agree as to Escrowholder's termination and
appoint Escrowholder's successor, or (iii) Escrowholder ceases to exist or is
otherwise unable to continue to discharge its duties hereunder. In the event of
Escrowholder's termination as Escrowholder by resignation, ceasing to exist or
by otherwise becoming unable to perform, Investors shall appoint a successor.
Upon Escrowholder's receipt of notice of any such appointment of Escrowholder's
successor, all documents, shares and other property then in Escrowholder's
possession pursuant to this Agreement shall be delivered to such successor.
3.16 FURTHER INSTRUMENTS. If Escrowholder reasonably requires
other or further instruments in connection with this Agreement or obligations in
respect hereto, the necessary parties hereto shall join in furnishing such
instruments.
3.17 CONFLICTING NOTICES; DISPUTES. If Escrowholder receives a
notice from Optionee that Optionee is exercising any of Optionee's rights
hereunder, Escrowholder shall first complete all action required with respect to
the notice before taking action with respect to any subsequently received notice
which in any way conflicts with the prior notice. It is understood and agreed
that should any dispute arise with respect to the delivery or ownership or right
of possession of the securities and any other property held by Escrowholder
hereunder,
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Escrowholder is authorized and directed to retain in its possession without
liability to anyone all or any part of said securities and such other property
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 Escrowholder shall be under no duty whatsoever to institute
or defend any such proceedings.
4. CALIFORNIA COMMISSIONER OF CORPORATION.
4.1 CORPORATE SECURITIES LAWS. THE SALE OF THE SECURITIES
WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH
SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF
SECURITIES IS EXEMPT FROM ALL QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF
THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT
ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE
SALE IS SO EXEMPT.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF OPTIONEE.
5.1 OWNERSHIP OF OPTION SHARES; NO CONFLICTS. Optionee
represents and warrants as of this date, and covenants for the period beginning
on this date and ending the termination of this Agreement, that (i) Optionee has
and will have the right to enter into this Agreement, to transfer to Investors
all or any part of the Option Shares, Distributions and Auxiliary Securities
free and clear of any lien, claim, encumbrance or restriction of any type or
nature whatsoever (other than restrictions on resale that may arise under
applicable federal and state securities laws); (ii) the Option Shares,
Distributions and Auxiliary Securities are not and will not be subject to any
right of first refusal, right of repurchase or any similar right granted to, or
retained by, the Issuer, any shareholder of the Issuer or any other person; and
(iii) there is no provision of any existing agreement, and Optionee will not
enter into an agreement, by which Optionee is or would be bound (or to which
Optionee is or would become subject) that conflicts or would conflict with this
Agreement or the performance of Optionee's obligations under this Agreement.
5.2 SHAREHOLDER REPORTS. Until such date as the Put Option has
been exercised, Optionee shall deliver or cause to be delivered to Investors
full and complete copies of all reports and information received by Optionee as
a shareholder of Issuer.
5.3 RULE 144 REPORTS. Optionee shall fully cooperate in the
completion and execution of any notice deemed by Investors to be required to be
filed with the Securities and Exchange Commission in respect of any proposed
sale of securities pursuant to Rule 144 promulgated under the Securities Act of
1933, as amended. Optionee agrees that Optionee shall use Optionee's best
efforts, upon Investors' written request, to cause Issuer to obtain and publish
all information necessary to satisfy the current public information requirements
of Rule 144.
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5.4 NO MATERIAL ADVERSE CHANGE. Optionee represents and
warrants to Investors that, to the best of Optionee's knowledge, there has been
no material adverse change in the financial condition or business prospects of
the Issuer since the date of the last financial statement of the Issuer which
Optionee has delivered to Investors.
5.5 FURTHER ASSURANCES. Upon the reasonable request of
Escrowholder or Investors, Optionee will prepare, execute and deliver any
further instruments and do any further acts that may be necessary to carry out
more effectively the purpose of this Agreement, including the preparation,
execution and delivery of applications to the California Department of
Corporations.
6. REPRESENTATIONS OF INVESTORS. If Issuer's counsel reasonably
deems it necessary, the transfer of any of the securities or shares purchased
upon the exercise of the Put Option may be conditioned upon Investors
representing to the Issuer that:
(i) the securities are being acquired (a) for Investors' own
account, not for the account of any other person, and (b) for investment and not
with a view to distribution or resale except in compliance with applicable laws
regulating securities;
(ii) Investors are capable of evaluating the merits and risks
of its investment in the securities and the amount of such investment is within
Investors' risk capital means;
(iii) Investors understand and acknowledges that an investment
in the Issuer as represented by the Option Shares is highly speculative in
nature and is subject to a high degree of risk of loss in whole or in part;
(iv) Investors understand and acknowledges that it must bear
the economic risk of investment for an indefinite period of time because the
transfer to Investors of the securities has not been registered under the
Securities Act of 1933 and the securities cannot be transferred by Investors
unless such transfer is registered under such Act or registration is not
required in connection with such transfer, and
(v) Such other representations as are required in the opinion
of Issuer's counsel, reasonably satisfactory to Investors, to comply with
applicable state or federal securities laws.
7. MISCELLANEOUS.
7.1 AMENDMENT. Except as provided in Section 3.7, this
Agreement may only be amended by a writing signed by Optionee and Investors.
7.2 ASSIGNMENT.
(a) Except as provided herein, the Loan Agreement and
the Call Option Agreement, Optionee may not sell, assign, transfer, hypothecate,
pledge or otherwise encumber, in any manner, prior to the earlier of the
exercise or expiration of the Put Option, this Agreement or any of the Option
Shares, Distributions or Auxiliary Securities. Any attempt to sell, assign,
transfer, hypothecate, pledge or otherwise encumber this Agreement, any interest
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therein or any such Option Shares, Distributions or Auxiliary Securities and any
levy of execution, attachment, or similar process on such securities or property
shall be null and void. Subject to the foregoing, this Agreement shall be
binding on and inure to the benefit of the heirs, executors, and personal
representatives of Optionee.
(b) Investors may assign its right, title and
interest in this Agreement following notice to Escrowholder, but without the
consent of the Optionee. Following such assignment, this Agreement shall be
binding upon and inure to the benefit of any such assignee. Such assignment
shall be conditioned on compliance with any applicable state and federal
securities laws and, upon request by Optionee, Investors shall furnish an
opinion of counsel to such effect, reasonably satisfactory to the Issuer and
Optionee.
7.3 TRANSFER OF REGISTRATION RIGHTS. Optionee agrees that
exercise of the Put Option by Investors shall transfer to Investors all rights
of Optionee which are transferable by Optionee, if any, to require the Issuer to
register or qualify any of the Option Shares for resale under the Securities Act
of 1933, as amended, and any state laws. Optionee shall take any and all steps
necessary or appropriate to effect or document such transfers of registration
rights.
7.4 ENTIRE AGREEMENT; CONTROLLING DOCUMENT. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations, correspondence and
understandings between the parties with respect to the subject matter hereof,
whether oral or in writing.
7.5 COSTS OF ENFORCEMENT. If any party to this Agreement seeks
to enforce its rights under this Agreement by legal proceedings or otherwise,
the nonprevailing party shall pay all costs and expenses incurred by the
prevailing party, including, without limitation, all reasonable attorneys' fees.
7.6 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement
shall be governed by and construed in accordance with the laws of the State of
California applicable to contracts entered into by California residents and to
be performed wholly in the State of California. Each party hereto hereby agrees
that any action which, in whole or in part, in any way arises under this
Agreement shall be brought in the state courts of the County of Santa Xxxxx or
the United States District Court for the Northern District of California. Each
party hereby submits to the exclusive jurisdiction and venue of such Courts for
purposes of any such action and agrees that any notice, document or complaint in
any such action may be served on it by delivery in the manner provided for the
delivery of notices under this Agreement.
7.7 NOTICES. All notices and other communications under this
Agreement shall be in writing, and shall be deemed to have been duly given on
the date of delivery if delivered personally, or on the second day after mailing
if mailed to the party to whom notice is to be given by first class mail,
registered or certified, postage prepaid, and addressed as follows (until any
such address is changed by notice duly given):
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To Optionee at: Xxxxxxxxx Xxxxxx
E-Loan, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
To Investors at: To the addresses set forth for investors
on Schedule A
To Escrowholder at: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx, Esq.
7.8 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.9 SEVERABILITY. If any provision of this Agreement shall be
determined to be invalid or unenforceable, the remainder shall be valid and
enforceable to the maximum extent possible.
7.10 HEADINGS. The section headings used in this Agreement are
intended principally for convenience and shall not by themselves, determine the
rights and obligations of the parties to this Agreement.
7.11 DELAY AND WAIVER. No delay on the party of Investors in
exercising any right under this Agreement shall operate as a waiver of such
right. The waiver by Investors of any term or condition of this Agreement shall
not be construed as a waiver of a subsequent breach or failure of the same term
or condition or a waiver of any other term or condition contained in this
Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement the
day and year first above written.
OPTIONEE:
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Xxxxxxxxx Xxxxxx
INVESTORS:
YAHOO! INC.
By:
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Title:
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SOFTBANK HOLDINGS, INC.
By:
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Title:
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SOFTBANK TECHNOLOGY VENTURES IV L.P.
By: STV IV LLC
Its General Partner
By:
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Title:
--------------------------------
SOFTBANK TECHNOLOGY ADVISORS FUND L.P.
By: STV IV LLC
Its General Partner
By:
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Title:
--------------------------------
SEQUOIA CAPITAL
as nominee for:
Sequoia Capital VIII
Sequoia International Technology Partners VIII
Sequoia International Technology Partners VIII-Q
Sequoia 1997
CMS Partners
By:
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Title:
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BENCHMARK CAPITAL PARTNERS II, L.P.
as nominee for:
Benchmark Capital Partners, II, L.P.
Benchmark Founders' Fund II, L.P.
Benchmark Founders' Fund II-A, L.P.
Benchmark Members' Fund, L.P.
By: Benchmark Capital Management Co. II, LLC,
Its General Partner
By:
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Xxxxxx Xxxxx, Member
TECHNOLOGY PARTNERS FUND VI, L.P.
By: TP Management VI, L.L.C.
By:
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Xxx X. Xxxxxxxxxx,
Managing Partner
TECHNOLOGY PARTNERS FUND V, L.P.
By: TPW Management V, L.P.
By:
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Xxx X. Xxxxxxxxxx,
General Partner
ESCROW HOLDER:
XXXXXX XXXXXXX XXXXXXXX & XXXXXX
By:
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Title:
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SCHEDULE A
PUT OPTION AGREEMENT
NUMBER OF
LENDERS LOAN AMOUNT PLEDGED SHARES
Yahoo! Inc. $974,026.00 105,153
0000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000-0000
Softbank Holdings, Inc. $1,168,831.00 126,183
00 Xxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Softbank Technology Ventures IV, L.P. $1,144,051.73 123,509
000 X. Xxx Xxxxxx Xxxxxx, Xxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx X.X. XxxXxxxxx
Softbank Technology Advisors Fund, L.P. $24,779.27 2,675
000 X. Xxx Xxxxxx Xxxxxx, Xxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx X.X. XxxXxxxxx
Sequoia Capital VIII $1,059,311.52 114,359
Building Four, Suite 280
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Sequoia Capital VIII $13,441.56 1,451
Building Four, Suite 280
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Sequoia Capital VIII $70,129.86 7,571
Building Four, Suite 280
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Sequoia Capital VIII $2,571.43 000
Xxxxxxxx Xxxx, Xxxxx 000
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Sequoia Capital VIII $23,376.62 2,524
Building Four, Suite 280
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
SCHEDULE A
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Benchmark Capital Partners II, L.P. $292,208.00 31,546
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
Technology Partners Fund V, L.P. $49,205.00 5,312
0000 Xxxxxxx Xxxxxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Attn: Xxx X. Xxxxxxxxxx
Technology Partners Fund VI, L.P. $178,068.00 19,224
0000 Xxxxxxx Xxxxxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000
Attn: Xxx X. Xxxxxxxxxx
TOTAL $5,000,000.00 539,785
SCHEDULE A
-2-
EXHIBIT A
PUT OPTION SUBSCRIPTION FORM
(To be signed only upon exercise of Put Option)
To:
----------------------
The undersigned, the holder of the attached Put Option, hereby
irrevocably elects to exercise the right represented by that Put Option to sell
to the Investors thereunder, ________ shares of Common Stock of E-Loan, Inc.,
and such other property as may be subject to such Put Option at an aggregate
price of $_____________, for those shares and other property. The undersigned
hereby covenants to cause certificates representing such shares to be issued in
the names of such persons or entities as advised in writing by Investors and to
take all other actions necessary to effect the transfer of any other property as
may be subject to the Put Option.
Dated:
-------------------
-----------------------------------
Xxxxxxxxx Xxxxxx
Address:
---------------------------
---------------------------
EXHIBIT A
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EXHIBIT B
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, I, Xxxxxxxxx Xxxxxx hereby sell, assign and
transfer unto _____________________________, _____________shares of the Common
Stock of E-Loan, Inc., a California corporation (the "Company"), standing in my
name on the books of the company represented by Certificate No. __________
herewith and do hereby irrevocably constitute and appoint ______________________
to transfer said stock on the books of the Company with full power of
substitution in the premises.
Dated:
-------------------
-----------------------------------
Xxxxxxxxx Xxxxxx
This Assignment Separate from Certificate was executed in conjunction
with the terms of a Put Option Agreement dated August 31, 1998, and shall not be
used in any manner except as provided in such Agreement.
EXHIBIT B
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