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EXHIBIT 10.9
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (this "Agreement") is made effective as
of April 10, 2000, by and between WEBEX, INC., a Delaware corporation ("Lender"
or "Company") and SUBRAH S. IYAR, an individual ("Borrower").
RECITALS
A. Borrower, the Chief Executive Officer and a director of Company,
desires to borrow the principal amount of $3,600,000 from Lender and Lender has
agreed to lend to Borrower such principal amount, in accordance with the terms
of this Agreement.
B. Borrower has agreed to execute a Promissory Note in favor of Lender
substantially in the form of Exhibit A attached hereto and incorporated by
reference herein (the "Note") and provide the Pledged Collateral (as hereinafter
defined) as security to Lender in order to satisfy Borrower's obligations herein
and under the Note.
C. As used in this Agreement, the term "Loan Documents" shall include
this Agreement, the Note evidencing the loan described in this Agreement and the
UCC-1 filing, if required by Lender, and any other documents executed by
Borrower and Lender in connection with this loan.
D. Capitalized terms used herein and not otherwise defined shall have
the meaning ascribed thereto in the Loan Documents.
THEREFORE, Borrower and Lender agree as follows:
ARTICLE 1
Terms of Loan
1.1 Loan Amount. By and subject to the terms of this Agreement, Lender
agrees to lend to Borrower, and Borrower agrees to borrow from Lender, the
principal sum of Three Million Six Hundred Thousand Dollars ($3,600,000) (the
"Loan").
1.2 Term of Loan. The balance of principal and accrued interest shall be
due on the second anniversary of the date of this Agreement.
1.3 Interest Rate. Interest shall accrue on the unpaid principal balance
hereunder from time to time outstanding at the rate of six and one-half percent
(6.5%) per annum.
ARTICLE 2
Security Interest
2.1 Grant of Security Interest. As security for the full, prompt and
complete payment and performance when due (whether by stated maturity, by
acceleration or otherwise) of all indebtedness of Borrower to Lender created
under the Note (all such indebtedness being the
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"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 Lender's lien in and to the collateral pledged hereunder, Borrower
hereby pledges to Lender, and grants to Lender, a first priority security
interest in all of the following (collectively, the "Pledged Collateral"):
(a) Three million shares of the Common Stock of Company currently
held by Borrower (the "Pledged Shares"), and all stock
certificates, dividends, cash, securities, instruments, and other
property, proceeds, options or rights from time to time received,
receivable, or otherwise distributed in respect of or in exchange
for any or all of the Pledged Shares;
(b) A first deed of trust on that certain property located at
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.
2.2 Collection; Extension etc. At any time, without notice, and at the
expense of Borrower, Lender in its name or in the name of its nominee or of
Borrower may, but shall not be obligated to: (1) collect by legal proceedings or
otherwise all dividends, interest, principal payments and other sums now or
hereafter payable upon or on account of said Pledged Collateral; (2) enter into
any extension, reorganization, deposit, merger or consolidation agreement, or
any agreement in any way relating to or affecting the Pledged Collateral, and in
connection therewith may deposit or surrender control of such Pledged Collateral
thereunder, accept other property in exchange for such Pledged Collateral and do
and perform such acts and things as it may deem proper, and any money or
property received in exchange for such Pledged Collateral shall be applied to
the indebtedness or thereafter held by it pursuant to the provisions hereof; (3)
insure, process and preserve the Pledged Collateral; (4) cause the Pledged
Collateral to be transferred to its name or to the name of its nominee; and (5)
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
Borrower shall retain all voting rights as to the Pledged Shares, provided,
however, that no vote shall be cast which in Lender's reasonable judgment, would
impair the Pledged Collateral or which would be inconsistent with or violate any
provision of the Loan Documents.
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2.3 Taxes. Borrower agrees to pay prior to delinquency and to hold
Lender harmless from any and all liabilities with respect to, or resulting from
any and all taxes, charges, liens and assessments against the Pledged
Collateral, and upon the failure of Borrower to do so, Lender 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.
2.4 Termination. In the event that Borrower's service with Company
(whether an employee, director or consultant) is terminated for any reason
(whether voluntarily by Borrower or involuntarily by Company) prior to payment
in full of the Note, in addition to any rights of Lender pursuant to this
Agreement, the Note may be accelerated and all remaining unpaid principal and
accrued interest shall become due and payable in full within 180 days of the
date of such termination unless due earlier pursuant to the terms of the Note or
this Agreement. If any such amounts are not paid (the "Unpaid Amount") within
the earlier of 180 days following Borrower's termination of service and the
Maturity Date, then the Unpaid Amount may be satisfied by Lender in its sole
discretion at any time following such date by return to Lender for cancellation
of shares of Common Stock in an amount equal to the Unpaid Amount (or portion
thereof); provided, however, that any fractional shares of Common Stock
calculated pursuant to this sentence will be rounded up to the nearest whole
number. For purposes of satisfying the Note, the value of the shares surrendered
shall be as determined in good faith by the Board of Directors of the Company.
2.5 Rights. Until all indebtedness shall have been paid in full all
other rights, powers and remedies granted to Lender hereunder shall continue to
exist and may be exercised by Lender 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
Borrower may have ceased.
2.6 Release. Lender agrees that so long as no default exists under any
of the Loan Documents, the Pledged Shares shall, upon the request of Borrower,
be released from pledge as the indebtedness is paid. In addition, upon the
request of Borrower, so long as a public market exists for the Pledged Shares,
such Shares may be sold by Borrower provided fifty percent (50%) of the gross
proceeds of any such sale are used to repay the Note.
2.7 Discharge. Lender may at any time deliver the Pledged Collateral or
any part thereof to Borrower and the receipt of Borrower shall be a complete and
full acquittance for the Pledged Collateral so delivered, and Lender shall
thereafter be discharged from any liability or responsibility therefor.
ARTICLE 3
Representations and Warranties
Borrower makes the following representations and warranties in order to
induce Lender to enter into and execute the Loan Documents, and to make the Loan
to Borrower:
3.1 Enforceability. Borrower is authorized to execute, deliver and
perform under the Loan Documents which are valid and binding obligations of
Borrower.
3.2 No Violation. Borrower's undertakings in the Loan Documents do not
violate any applicable statute, law, regulation or ordinance or any order or
ruling of any court or
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governmental entity, or conflict with, or constitute a breach or default under,
any agreement by which Borrower is bound. Borrower is not in violation of any
statute, law, regulation or ordinance, or of any order of any court or
governmental entity.
3.3 Claims. There are no claims, actions or proceedings pending or, to
Borrower's knowledge, threatened against Borrower other than those disclosed to
Lender in writing.
3.4 Rights. Borrower holds all right, title and interest in the Pledged
Collateral described herein.
3.5 Prior Liens. There are no liens or encumbrances against the Pledged
Collateral and no filed or recorded Form UCC-1 Financing Statements.
3.6 No Further Assignment. Borrower will not make any further assignment
of the Pledged Collateral or create any further security interest therein, nor
permit his rights therein to be reached by attachment, levy, garnishment, or
other judicial process.
3.7 Survival of Representation and Warranties. Each of the foregoing
representations and warranties shall survive the making of the Loan.
ARTICLE 4
Default
4.1 Default. The following shall constitute an "Event of Default" under
the Loan Documents:
(a) Monetary. At Lender's option, Borrower's failure to pay when due any
sums payable under the Note or any of the other Loan Documents;
(b) Performance of Obligations. Borrower's failure to perform his
obligations under any of the Loan Documents;
(c) Representations and Warranties. The failure of any of Borrower's
representations or warranties in any of the Loan Documents to be true as of the
date of this Agreement and to remain true while any amounts are outstanding
under the Note or during the terms of any of the Loan Documents;
(d) Voluntary Bankruptcy; Insolvency. (i) Borrower's filing of a
petition for relief under the Bankruptcy Act, or under any other present or
future state or federal law regarding bankruptcy, reorganization or other relief
to debts (collectively, "Debtor Relief Law"); or (ii) Borrower's filing any
pleading in any involuntary proceeding under the Bankruptcy Act or other Debtor
Relief Law, which admits the jurisdiction of the court or the petitioner's
material allegations regarding Borrower's insolvency; or (iii) Borrower's making
a general assignment for the benefit of creditors; or (iv) Borrower's applying
for, or the appointment of, a receiver, custodian or liquidator of Borrower or
any of his property;
(e) Involuntary Bankruptcy. Borrower's failure to effect a full
dismissal of any involuntary petition under the Bankruptcy Act or any other
Debtor Relief Law, that is filed
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against Borrower or in any way restrains or limits Borrower or Lender regarding
the Loan, prior to the earlier of the entry of any order granting relief sought
in the involuntary petition, or thirty (30) days after the date of filing of the
petition; or
(f) Levy on Pledged Collateral. The levy of any attachment, execution or
other process against the Pledged Collateral.
4.2 Acceleration. Upon the occurrence of an Event of Default specified
in Section 4.1 hereof, or upon any default under any of the other Loan
Documents, Lender may, at its option, declare all sums owing to Lender under the
Note immediately due and payable.
ARTICLE 5
Miscellaneous Provisions
5.1 Further Assurances. At Lender's request and at Borrower's expense,
Borrower shall execute, acknowledge and deliver any other instruments and
perform any other acts necessary, desirable or proper (as determined by Lender)
to carry out the purposes of the Loan Documents or to perfect and preserve any
liens created by the Loan Documents, including but not limited to a mortgage on
the residence purchased with the proceeds of the Loan.
5.2 Form of Documents. The form and substance of all documents,
instruments, and forms of evidence to be delivered to Lender under the terms of
any of the Loan Documents shall be subject to Lender's approval and shall not be
modified, superseded or terminated in any respect without Lender's prior written
approval.
5.3 No Third Parties Benefited. No person other than Lender and Borrower
and their permitted successors and assigns shall have any right of action under
any of the Loan Documents.
5.4 Notices. All written notices and demands under the Loan Documents
shall be deemed served upon delivery or, if mailed, upon the first to occur of
receipt or the expiration of seventy-two (72) hours after deposit in United
States Postal Service, certified mail, postage prepaid and addressed to the
address of Borrower or Lender appearing in the signature page below. Notice of
change of address may be given in the same manner, provided Borrower's address
is in the State of California.
5.5 Authority to File Notices. Borrower irrevocably appoints and
authorizes Lender, as Borrower's attorney-in-fact, which agency is coupled with
an interest, to execute and/or record in Lender's or Borrower's name any
notices, instruments or documents that Lender deems appropriate to protect
Lender's interest under any of the Loan Documents.
5.6 Attorneys' Fees; Enforcement. If any attorney is engaged by Lender
to enforce, construe or defend any provision of any of the Loan Documents, or as
a consequence of any Event of Default under the Loan Documents, with or without
the filing of any legal action or proceeding, Borrower shall pay to Lender,
immediately upon demand, the amount of all attorneys' fees and costs incurred by
Lender in connection therewith, together with interest thereon from the date of
such demand at the maximum rate of interest allowable by law.
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5.7 Assignment. Borrower shall not assign Borrower's interest under any
of the Loan Documents, or in any monies due or to become due thereunder.
5.8 Severability. If any provision of the Loan Documents shall be
determined by a court of competent jurisdiction to be invalid, illegal or
unenforceable, that portion shall be deemed severed from the Loan Documents and
the remaining parts shall remain in full force as though the invalid, illegal,
or unenforceable portion had never been part of the Loan Documents.
5.9 Heirs, Successors and Assigns. The terms of the Loan Documents shall
be binding upon and inure to the benefit of the heirs, successors and assigns of
all parties; provided, however, that this Section does not waive the provisions
of Section 5.7.
5.10 Rights Cumulative; No Waiver. All Lender's rights and remedies
provided in the Loan Documents, granted by law or otherwise, are cumulative and
may be exercised by Lender at any time. Lender's exercise of any right or remedy
shall not constitute a cure of any Event of Default unless all sums then due and
payable to Lender under the Loan Documents are repaid and Borrower has cured all
other Events of Default. No waiver shall be implied from any failure of Lender
to take, or any delay by Lender in taking action concerning any Event of Default
under the Loan Documents, or from any previous waiver of any similar or
unrelated Event of Default. Any waiver or approval under any of the Loan
Documents must be in writing and shall be limited to its specific terms.
5.11 Time. Time is of the essence of each term of the Loan Documents.
5.12 Headings. All headings appearing in any of the Loan Documents are
for convenience only and shall be disregarded in construing the Loan Documents.
5.13 Governing Law. The Loan Documents shall be governed by, and
construed in accordance with, the laws of the State of California. Borrower
consents to the jurisdiction of any Federal or State Court within the State of
California having proper venue and also consents to service of process by any
means authorized by California or Federal law.
5.14 Integration; Interpretation. The Loan Documents contain or
expressly incorporate by reference the entire agreement of the parties with
respect to the matters contemplated herein and supersede all prior negotiations
and documents. The Loan Documents shall not be modified except by written
instrument executed by all parties. Any reference to the Loan Documents in any
of the Loan Documents includes any amendments, renewals or extensions approved
by Lender. Any reference to this Agreement or to the Loan Documents shall
include all or any of the provisions of this Agreement and the Loan Documents
unless otherwise specified.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement on
the date first written above.
Lender: WEBEX, INC., a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxxx
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Its: CFO
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Address: 000 Xxxx Xxxxxxx Xxx
Xxx Xxxx, XX 00000
Borrower: SUBRAH S. IYAR, an individual
/s/ Subrah S. Iyar
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Address: 0000 Xxxxxxx Xx
Xxxxxxx, XX 00000
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EXHIBIT A
FORM PROMISSORY NOTE
$3,600,000 San Francisco, California
Dated as of April 10, 2000
FOR VALUE RECEIVED, the undersigned, SUBRAH S. IYAR, an
individual ("Borrower"), promises to pay to the order of WEBEX, INC., a Delaware
company (the "Company"), the principal sum of Three Million Six Hundred Thousand
Dollars ($3,600,000) payable on April 10, 2002 (the "Maturity Date"). This Note
shall bear interest from the date hereof on the unpaid principal and accrued but
unpaid interest at the rate of six and one-half percent (6.5%) per annum, the
aggregate interest being payable on the Maturity Date.
From and after the Maturity Date, or such earlier date of an
Event of Default as defined in a Loan and Security Agreement of even date
herewith which is on file with the Secretary of the Company, this Note shall
bear interest on the unpaid principal and accrued but unpaid interest at a rate
equal to ten percent (10%) per annum, until paid in full. Notwithstanding any
provision of this Note, it is the intent and agreement of the parties that in
the event any interest specified herein is found to violate any applicable law
or regulation, this Note shall be construed or deemed amended so that the
interest is reduced to the extent necessary to comply with such applicable law
or regulation.
This Note is a full-recourse note originally secured by a pledge
of three million shares of the Common Stock of the Company and a first mortgage
deed pursuant to the Loan and Security Agreement. Upon the occurrence of an
Event of Default, (and if such Event of Default shall not have been cured,
waived or postponed pursuant to a written agreement entered into between
Borrower and the Company within thirty (30) days after written notice of such
Event of Default from either Borrower or the Company to the other party, (a) all
indebtedness of Borrower under this Note, any term hereof to the contrary
notwithstanding, shall at the Company's option become immediately due and
payable without presentment, demand, protest or notice of dishonor, all of which
are expressly waived by Borrower and (b) the Company shall have all rights,
powers and remedies available under each of the Note and the Loan and Security
Agreement, or accorded by law, including, without limitation, the right to
resort to any or all security subject hereto and to exercise any or all of the
rights of a beneficiary or secured party pursuant to applicable law; provided,
however, that after such acceleration the Company may rescind and annul such
acceleration and its consequences if all existing Events of Default, other than
the nonpayment of accelerated principal or interest that has become due solely
because of the acceleration, have been cured or waived. All rights, powers and
remedies of the Company may be exercised at any time by the Company and from
time to time after the occurrence of an Event of Default, are cumulative and not
exclusive, and shall be in addition to any other rights, powers or remedies
provided by law or equity.
If payment is not made when due, and if action is instituted on
this Note, the undersigned agrees to pay reasonable attorneys' fees and costs of
suit as fixed by the court.
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The undersigned shall have the right to prepay all or any part of
the unpaid principal amount and accrued interest of this Note without premium at
any time prior to the Maturity Date.
This Note shall be governed by and construed in accordance with
the laws of the State of California without regard to principles of conflict of
laws.
IN WITNESS WHEREOF, the undersigned has caused this note to be
signed, dated and delivered as of the day and year first above written.
SUBRAH S. IYAR
/s/ Subrah S. Iyar
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