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EXHIBIT 10.21
RESOLUTIONS
BY THE BOARD OF DIRECTORS OF
CUMETRIX DATA SYSTEMS CORP.
WHEREAS, the Board of Directors of Cumetrix Data Systems Corp. (the
"Company") has determined that it is in the best interest of the Company to
adopt a plan under which the Company may make loans to certain key employees,
directors, and other individuals who provide valuable services to the Company,
in order to attract, retain, and motivate key personnel to provide such valuable
services to the Company.
NOW, THEREFORE, BE IT RESOLVED, that the Cumetrix Data Systems Corp.
2000 Loan Plan (the "Plan"), a copy of which is attached hereto as Schedule 1,
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is hereby approved and adopted as of the date hereof; and be it further
RESOLVED, that the Board of Directors hereby establishes the 2000 Loan
Plan Committee (the "Committee") to serve as the plan administrator, as defined
in the Plan; and be it further
RESOLVED, that Max Toghraie be, and he hereby is, appointed as the
sole member of the Committee; and be it further
RESOLVED, that the Company shall not make loans to Max Toghraie under
the Plan in excess of $275,000 principle amount outstanding at any given time;
and be it further
RESOLVED, that except as set forth in the foregoing resolution, the
Committee is authorized to administer the Plan and to make loans pursuant to the
Plan in such amounts and with such terms and conditions as determined by the
Committee in its discretion; and be it further
RESOLVED, that each of the officers of the Company be and each of them
hereby is, authorized and empowered, for and on behalf of the Company to (i)
execute and deliver any and all applications, agreements, documents,
instruments, and certificates; (ii) incur such costs and expenses; and (iii) do
any and all acts and things that any one or more of the officers of the Company
deems, in the exercise of his or her sole discretion, necessary, desirable or
appropriate in connection with these resolutions. The execution and delivery of
such applications, agreements, documents, instruments, and certificates and the
payment of costs and expenses in connection therewith shall constitute
conclusive proof of the appropriateness of such applications, agreements,
documents, instruments, certificates, and other acts.
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SCHEDULE 1
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CUMETRIX DATA SYSTEMS CORP.
2000 LOAN PLAN
Adopted by the Board of Directors as of August 18, 2000
1. Purpose. The purpose of this 2000 Loan Plan (the "Plan") is to
attract, retain, and motivate employees and other key personnel who provide
valuable services to Cumetrix Data Systems Corp., a California corporation (the
"Company") by providing them with the opportunity to obtain loan financing on
affordable terms.
2. Plan Administration
2.1 In General. The Plan shall be administered by the Company's
Board of Directors (the "Board"). The Board, in its sole discretion, may
delegate its authority and duties under the Plan to a committee of one or more
directors appointed by the Board, under such conditions and limitations as the
Board may from time to time establish. The Board and/or any committee that has
been delegated the authority to administer the Plan shall be referred to as the
"Plan Administrator." Except as otherwise explicitly set forth in the Plan, the
Plan Administrator shall have the authority, in its discretion, to determine all
matters relating to loans granted under the Plan, including selection of the
individuals to be granted loans, the principal amount of such loans, and any and
all other terms, conditions, restrictions, and limitations, if any, of a loan.
The Plan Administrator shall have the authority and discretion to interpret the
Plan, to establish, amend, and rescind any rules and regulations relating to the
Plan, to determine the terms and provisions of any loan made pursuant to the
Plan, and to make all other determinations that may be necessary or advisable
for the administration of the Plan. In controlling and managing the operation
and administration of the Plan, the Plan Administrator shall take action in a
manner that conforms to the articles of incorporation and bylaws of the Company,
as amended from time to time, applicable state law, and any other agreements or
instruments by which the Company is bound. All decisions made by the Plan
Administrator prior to the Plan's execution and related orders and resolutions
shall be final, conclusive, and binding on all persons.
2.2 Other Plans. The Plan Administrator shall also have
authority to grant loans as an alternative to or as the form of payment for
grants or rights earned or due under other compensation plans or arrangements of
the Company, including the plan of any entity acquired by the Company.
3. Eligibility. Members of the Executive management Team of the Company,
as well as any other significant employee option holder at sole discretion of
the plan administrator (Max Toghraie) shall be eligible to receive loans under
the Plan. For purposes of this Section 3, the "Company" includes any entity that
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is directly or indirectly controlled by the Company or any entity in which the
Company has a significant equity interest, as determined by the Plan
Administrator.
4. Amount Available for Loans. The aggregate dollar amount of all loans
outstanding under the Plan at any time shall not exceed Five Hundred Thousand
Dollars ($500,000,000).
5. Loan Documents. Each loan shall be evidenced by a promissory note
substantially in the form attached as Exhibit A hereto (the "Note") and a stock
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pledge agreement substantially in the form set forth in Exhibit B hereto (the
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"Pledge Agreement"). Each Note and/or Pledge Agreement may contain such
provisions or conditions as the Plan Administrator deems necessary or
appropriate to effectuate the sense and purpose of the Plan and may be amended
from time to time in accordance with the terms hereof and thereof. However under
no circumstances is any participant in the plan personally liable beyond the
pledge of his current and future stocks or stock options holdings in the company
for the purposes of this loan including principal, accrued interest, or other
charges or fees incurred by the plan in administering this plan. The company's
sole remedy is limited to the exercise of its rights as sole beneficiary of the
above stock and stock options proceeds as well as all future stocks and options
grants to the employee for the benefit of the company. Whether or not the
pledged stocks, or options are of any value, the company's security in said
collateral "Exhibit B", remains the company's sole recourse.
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6. Transferability. Except as specifically allowed by the Plan
Administrator, loans and any of the rights, privileges or obligations conferred
thereby shall not be assignable or transferable by the recipient other than by
will or the laws of descent and distribution.
7. Term of the Plan. The Plan shall become effective as of August 22,
2000, and shall remain in full force and effect through August 31, 2000, unless
sooner terminated by the Board. After the Plan is terminated, no future loans
may be granted, but loans previously granted shall remain outstanding in
accordance with their applicable terms and conditions and the Plan's terms and
conditions.
8. Governing Law. The Plan shall be governed by, and all questions
arising hereunder shall be determined in accordance with, the laws of the State
of California, notwithstanding any California or other conflicts-of-law
provisions to the contrary.
9. Limitation of Implied Rights. Neither any person to whom a loan is
granted nor any other person shall, by reason of participation in the Plan,
acquire any right in or title to any assets, funds or property of the Company or
any subsidiary whatsoever. The Plan does not constitute a contract of
employment, and selection as to receive any loan under the Plan will not give
any participating employee or other person the right to be retained in the
employ or other service of the Company or any subsidiary, nor any right or claim
to any benefit under the Plan, unless such right or claim has specifically
accrued under the terms of the Plan.
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EXHIBIT A
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PROMISSORY NOTE
U.S. $_______________ ____________, 2000
Industry, California
FOR VALUE RECEIVED, _______________________________________________
("Maker"), hereby promises to pay to the order of CUMETRIX DATA SYSTEMS CORP., a
California corporation or its successors or assigns ("Payee"), at the office of
Payee, located at 957 Lawson Street, Industry, California 91748, the principal
amount of ____________________________________________________ Dollars
($____________), together with interest on the principal balance outstanding
hereunder, from (and including) the date hereof until (but not including) the
date of payment, at the interest rate specified below, in accordance with the
following terms and conditions:
1. Stated Interest Rate. Except as provided in Section 2 below, the
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principal balance outstanding hereunder shall bear interest, until fully paid,
at 5% per annum (the "Stated Interest Rate").
2. Default Interest Rate. The "Default Interest Rate" shall be 6% per
annum. The principal balance outstanding hereunder from time to time shall bear
interest at the Default Interest Rate from the date of the occurrence of an
Event of Default (as hereinafter defined) hereunder until the earlier of (a) the
date on which the principal balance outstanding hereunder, together with all
accrued interest and other amounts payable hereunder, is paid in full; or (b)
the date on which such Event of Default is cured.
3. Payments. This Note shall be payable as follows:
(a) Twenty (20) equal quarterly installments of [principal and]
interest of _______________ Dollars and __________ Cents ($_______) each, due
and payable on the last day of March, June, September, and December in each
year, commencing on December 31, 2001.
(b) All unpaid principal and accrued but unpaid interest thereon and
all other amounts payable hereunder shall be due and payable on August 22, 2005.
(If Applicable)
4. Prepayment. Maker may prepay all or any portion of the interest and
the unpaid principal balance of this Note at any time, or from time to time,
without penalty or premium.
5. Collateral and Security. Maker's obligations under this Note are
secured solely by the Stock Pledge Agreement of even date herewith, executed by
Maker in favor of Payee (the "Pledge Agreement").
6. Events of Default; Acceleration. The occurrence of any one or more of
the following events shall constitute an "Event of Default" hereunder, and upon
such Event of Default, the entire principal balance outstanding hereunder,
together with all accrued interest and other amounts payable hereunder, at the
election of Payee, shall become immediately due and payable, without any notice
to Maker and without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by Maker:
(a) Nonpayment of principal, interest, or other amounts when the same
shall become due and payable hereunder; or
(b) Maker breaches or fails to comply with any other provision of this
Note or any covenant or agreement in the Pledge Agreement, and Maker does not
cure such breach or non-compliance within ten (10) days after receipt of written
notice of such default from Payee; or
(c) Any statement, representation or warranty of Maker made or
furnished to Payee by or on behalf of Debtor herein or in the Stock Pledge
Agreement shall be false or misleading in any material respect when made or
furnished; or
(d) The making by Maker of an assignment for the benefit of Maker's
creditors; or
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(e) The involuntary filing against Maker that is not stayed or
dismissed within 90 days of filing, or the voluntary filing by Maker of a
petition or application for relief under federal bankruptcy law or any similar
state or federal law; or
(f) The death or incapacity of Maker or any other person or entity who
is or may become liable hereunder.
7. Contracted For Interest.
(a) Maker agrees to pay an effective contracted for rate of interest
equal to the rate of interest resulting from all interest payable as provided in
this Note.
(b) Maker understands and believes that this transaction complies with
the usury laws of the state of California; however, if any interest or other
charges in connection with this transaction are ever determined to exceed the
maximum amount permitted by law, then Maker agrees that (i) the amount of
interest or charges payable pursuant to this transaction shall be reduced to the
maximum amount permitted by law; and (ii) any excess amount previously collected
from Maker in connection with this transaction, which exceeded the maximum
amount permitted by law, will be credited against the principal balance then
outstanding hereunder. If the outstanding principal balance hereunder has been
paid in full, the excess amount paid will be refunded to Maker.
8. Governing Law. This Note shall be construed in accordance with and
governed by the laws of the state of California, notwithstanding any California
or other conflicts of law principles to the contrary.
9. Time of Essence. Time is of the essence of this Note and each and
every provision hereof.
10. Conflicts; Inconsistency. In the event of any conflict or
inconsistency between the provisions of this Note and the provisions of any one
or more of the other documents executed in connection with this transaction, the
provisions of this Note shall govern and control to the extent necessary to
resolve such conflict or inconsistency.
11. Amendments. No amendment, modification, change, waiver, release, or
discharge hereof and hereunder shall be effective unless evidenced by an
instrument in writing and signed by the party against whom enforcement is
sought.
12. Severability. The invalidity of any provision of this Note or portion
of a provision shall not affect the validity of any other provision of this Note
or the remaining portion of the applicable provision.
13. Binding Nature. The provisions of this Note shall be binding upon and
inure to the benefit of Maker and Payee and their respective heirs, personal
representatives, successors, and assigns, as applicable.
14. Notices. All notices, requests, demands, and other communications
required or permitted under this Note shall be in writing and shall be deemed to
have been duly given, made, and received when delivered against receipt, upon
receipt of a facsimile transmission, or upon actual receipt of registered or
certified mail, postage prepaid, return receipt requested, addressed as set
forth below:
If to Payee:
Cumetrix Data Systems Corp.
957 Lawson Street
Industry, California 91748
Attention: President
Telephone:______________________
Fax:____________________________
with a copy to:
Greenberg Traurig, LLP
One East Camelback Road
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Suite 1100
Phoenix, Arizona 85012
Attention: Robert S. Kant, Esq.
Telephone: (602) 263-2606
Fax: (602) 263-2350
If to Maker:
___________________________
___________________________
___________________________
Telephone:_________________
Fax:_______________________
with a copy to:
___________________________
___________________________
Telephone:_________________
Fax:_______________________
Either party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this section for the giving of notice.
15. Construction. Maker and Payee participated in the drafting of
this Note, and the respective legal counsel for Maker and Payee reviewed or had
the opportunity to review this Note. The normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall
not be applied to the interpretation of this Note. The language of this Note
shall be construed as a whole according to its fair meaning. The word
"include(s)" means "include(s), without limitation," and the word "including"
means "including, but not limited to." No inference in favor of, or against,
Maker or Payee shall be drawn from the fact that one party has drafted any
portion hereof.
IN WITNESS WHEREOF, Maker has executed this Note as of the date first
set forth above.
________________________________________
[Name]
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EXHIBIT B
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STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Agreement"), is made and entered into as
of August 22, 2000, by and between ___________________________________
("Debtor") and CUMETRIX DATA SYSTEMS CORP., a California corporation, ("Secured
Party").
RECITALS
A. Simultaneously with the execution and delivery of this Agreement,
Debtor has executed and delivered to Secured Party a Promissory Note of even
date herewith, in the original principal amount of $_____________ (the "Note"),
a copy of which is attached hereto as Exhibit A.
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B. Debtor is the owner of [________ shares (the "Shares") of the common
stock of Secured Party and] options to acquire __________ shares of the common
stock of Secured Party (the "Option Shares").
C. As collateral and security for the full, complete, and timely payment,
performance, and discharge by Debtor of his obligations under and pursuant to
the Note, Debtor has agreed to deliver the Pledged Stock (as defined in Section
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1(a)), to be held by Secured Party pursuant to the terms of this Agreement.
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AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth in this Agreement, the parties hereby agree as follows:
1. Grant of Security Interest. Debtor hereby grants to Secured Party a
security interest (the "Security Interest") in the following property, or
interests in property, of Debtor, whether now owned or existing or hereafter
acquired or arising and wherever located (collectively, the "Collateral"):
(a) All of [the Shares,] the Option Shares and all shares of the
Secured Party's common stock acquired after the date of this Agreement and
during the term of this Agreement (all such shares collectively referred to as
the "Pledged Stock");
(b) Any and all dividends and other distributions issued on or with
respect to, or in exchange or substitution for, the Pledged Stock, as set forth
in Section 6.1 of this Agreement; and
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(c) All present and future income, proceeds, earnings, increases, and
substitutions from or for the Pledged Stock of every kind and nature, including
all payments, interest, profits, distributions, benefits, rights, options,
warrants, dividends, stock dividends, stock splits, stock rights, regulatory
dividends, distributions, subscriptions, monies, claims for money due and to
become due, proceeds of any insurance on the Pledged Stock, shares of stock of
different par value or no par value issued in substitution or exchange for
shares included in the Pledged Stock, and all other property Debtor is entitled
to receive on account of such Pledged Stock, including, accounts, documents,
instruments, chattel paper, and general intangibles.
2. Secured Obligations. The Collateral shall secure the following
(collectively, the "Secured Obligations"):
(a) payment and performance of all obligations of Debtor under the
Note, together with all amendments, replacements, extensions, modifications,
substitutions or renewals thereof;
(b) payment and performance of every obligation, covenant, and
agreement of Debtor contained in this Agreement, together with all amendments,
replacements, extensions, modifications, substitutions or renewals hereof; and
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3. Representations and Warranties of Debtor. Debtor hereby represents and
warrants to Secured Party that:
3.1 Authority. Debtor has the full power, authority and legal right
to grant to Secured Party the Security Interest, and no further consent,
authorization, approval or other action is required for the grant of the
Security Interest or for Secured Party's exercise of its rights and remedies
under this Agreement, except as may be required in connection with the sale of
the Collateral by Secured Party by the laws affecting the offering and sale of
securities.
3.2 Title. Debtor is the legal, record, and beneficial owner of, and
has good and marketable title to (or, when the Option Shares are issued upon
exercise of the options, Debtor shall be the legal, record, and beneficial owner
of, and shall have good and marketable title to), the Collateral free and clear
of all security interests, liens, claims, charges, or other encumbrances, except
the Security Interest, and no financing statement covering the Collateral has
been or will be filed or recorded in any public office.
3.3 Priority. The Security Interest in the Collateral granted to
Secured Party constitutes, and hereafter will constitute, a security interest of
first priority.
3.4 Other Agreements. The execution, delivery and performance by
Debtor of the Note, this Agreement, and all other documents and instruments
relating to the Secured Obligations will not result in any breach of the terms
and conditions or constitute a default under any agreement or instrument under
which Debtor is a party or is obligated.
4. Covenants of Debtor.
4.1 Transfers. Debtor shall not sell, transfer, assign or otherwise
dispose of any Collateral or any interest therein (except as permitted herein)
without obtaining the prior written consent of Secured Party and shall keep the
Collateral free of all security interests or other encumbrances except the
Security Interest. Although proceeds of Collateral are covered by this
Agreement, this shall not be construed to mean that Secured Party consents to
any sale or other transfers of the Collateral. Notwithstanding any other
provision in this Agreement to the contrary, Secured Party shall release the
Collateral to permit sale of the Collateral if the proceeds of such sale are
used to pay the Secured Obligations, provided that Debtor executes and delivers
any agreements or other documents reasonably necessary or requested by Secured
Party to ensure that the proceeds of such sale are paid to Secured Party as
payment for the Secured Obligations.
4.2 Rights and Powers. All rights, powers and remedies granted
Secured Party herein, or otherwise available to Secured Party, are for the sole
benefit and protection of Secured Party, and Secured Party may exercise any such
right, power or remedy at its option and in its sole and absolute discretion
without any obligation to do so. In addition, if under the terms hereof, Secured
Party is given two or more alternative courses of action, Secured Party may
elect any alternative or combination of alternatives at its option and in its
sole and absolute discretion.
5. Perfection of Security Interest.
5.1 Certificated Securities. Debtor hereby deposits and delivers to
Secured Party stock certificates (or Option Certificates) for all of the Pledged
Stock accompanied by stock powers in the form of Exhibit B attached hereto, duly
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executed in blank by Debtor, to be held by Secured Party upon the terms and
conditions set forth in this Agreement. If Debtor acquires (by purchase,
exercise of options, stock dividend or otherwise), directly or indirectly, any
additional stock of Secured Party at any time after the date of this Agreement,
Debtor shall immediately pledge and deliver to Secured Party such stock,
together with related stock powers duly executed in blank by Debtor.
5.2 Uncertificated Securities. With respect to any Pledged Stock in
uncertificated (book-entry) form, Debtor shall, to the extent permitted by law,
cause the Security Interest of Secured Party to be appropriately recorded on the
stock register of the Secured Party, and will execute any document necessary to
perfect the Security
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Interest of Secured Party. If Debtor acquires (by purchase, exercise of options,
stock dividend or otherwise), directly or indirectly, any additional stock of
Secured Party in uncertificated form at any time after the date of this
Agreement, Debtor shall immediately pledge and deliver to Secured Party such
uncertificated stock, and Debtor shall execute any document necessary to perfect
the Security Interest of Secured Party in such additional shares of stock.
5.3 Further Assurances. Debtor shall execute and deliver to Secured
Party all other documents which are, in the opinion of Secured Party, necessary
or convenient to perfect, protect and maintain the Security Interest of Secured
Party in and to all of the Collateral, including, without limitation, financing
statements and continuation statements pursuant to the Uniform Commercial Code
("UCC"), and any other document necessary to enable Secured Party to exercise
and enforce its rights and remedies hereunder, all in form and substance
acceptable to Secured Party. In connection therewith, Secured Party may file in
any appropriate public office any document required or permitted by law to be
filed.
6. Dividends and Voting Rights.
6.1 Dividends. Any and all dividends and other distributions in the
form of securities (including all options, warrants and other rights to acquire
securities) issued on or with respect to, or in exchange or substitution for,
the Pledged Stock as a result of any stock dividend, stock split,
reclassification, reorganization, merger, consolidation, or otherwise, shall
promptly be delivered or distributed to Secured Party to hold as Collateral, and
shall, if received by Debtor, be received in trust for the benefit of Secured
Party, be segregated from the other property or funds of Debtor, and be promptly
delivered to Secured Party as Collateral in the same form as received, together
with related stock powers or other appropriate endorsements duly executed in
blank by Debtor. If Debtor receives or is entitled to receive any cash or any
cash equivalents as a result of any dividends or distributions with respect to
the Pledged Stock, Debtor shall immediately deliver, or shall instruct Secured
Party to deliver, such cash or cash equivalents to Secured Party. Any amount of
cash received by Secured Party pursuant to this Section 6.1 shall be considered
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a prepayment under the Note.
6.2 Dividend Payment Orders. In order to permit Secured Party to
exercise the rights and to receive all dividends and distributions that Secured
Party may be entitled to exercise or receive pursuant to Section 6.1 hereof,
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Debtor shall, upon written notice from Secured Party, from time to time execute
and deliver to Secured Party appropriate, dividend payment orders and other
instruments as Secured Party may request.
6.3 Trust. All dividends and distributions that are received by
Debtor contrary to the provisions of Section 6.1 hereof shall be received in
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trust for the benefit of Secured Party, shall be segregated from other funds and
property of Debtor, and shall be promptly delivered to Secured Party as
Collateral in the same form as received, together with related stock powers or
other appropriate endorsements duly executed in blank by Debtor.
6.4 Voting Rights and Proxies Prior to and After Event of Default. If
no Event of Default (as hereinafter defined) has occurred, Debtor shall be
entitled to exercise all of the voting and other consensual rights relating to
the Collateral or any part thereof for any purpose that is not inconsistent with
this Agreement. Upon the occurrence of an Event of Default, all rights of Debtor
to exercise the voting and other consensual rights that Debtor would otherwise
be entitled to exercise with respect to the Collateral shall cease, and all such
rights shall immediately become vested in Secured Party and Secured Party shall
thereafter have the sole right to exercise such voting rights and other
consensual rights. In order to permit Secured Party to exercise the voting and
other consensual rights that Secured Party may be entitled to exercise upon the
occurrence of an Event of Default, Debtor shall, upon execution and delivery of
this Agreement and upon written notice from Secured Party from time to time,
execute and deliver to Secured Party appropriate proxies and other instruments
as Secured Party may request, including an irrevocable proxy in the form of
Exhibit C attached hereto.
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7. Events of Default; Acceleration; Remedies.
7.1 Events of Default. Any failure to pay any of the Secured
Obligations when the same shall become due and payable, or the occurrence of any
"Event of Default" (as defined in the Note) shall constitute an "Event of
Default" under this Agreement.
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7.2 Acceleration and Remedies. Upon the occurrence of any Event of
Default, and at any time while such Event of Default is continuing, all
obligations secured hereby shall, at Secured Party's option, immediately become
due and payable without notice or demand, and Secured Party shall have the
following rights and remedies and may do one or more of the following:
(i) After written notice to Debtor as provided in Section 7.4
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hereof, to the extent such notice is required by applicable law, sell the
Pledged Stock and any other Collateral at public or private sale either with or
without having such Collateral at the place of sale. The proceeds of such sale,
after deducting therefrom all expenses of Secured Party in taking, storing, and
selling the Collateral (including, without limitation, reasonable attorneys'
fees) shall be applied to the payment of the Secured Obligations, and any
surplus thereafter remaining shall be paid to Debtor or any other person that
may be legally entitled thereto.
7.3 Purchase of Collateral. Secured Party, so far as may be lawful,
may purchase all or any part of the Collateral offered at any public or private
sale made in the enforcement of Secured Party's rights and remedies hereunder.
7.4 Notice. Any demand or notice of sale, disposition or other
intended action hereunder or in connection herewith, whether required by the UCC
or otherwise, shall be deemed to be commercially reasonable and effective if
such demand or notice is given to Debtor at least ten days prior to such sale,
disposition or other intended action, in the manner provided herein for the
giving of notices.
7.5 Private Resale. Debtor recognizes that as the result of
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act"), and applicable state securities laws, Secured Party may be
compelled, with respect to any resale of all or any part of the Collateral, to
limit purchasers to those who will agree, among other things, to acquire the
Collateral for their own account, for investment and not with a view to the
distribution or resale thereof. Debtor acknowledges that any such compelled
private resale may be at prices and on terms less favorable to Secured Party
than those obtainable through a public resale without such restrictions
(including, without limitation, a public offering made pursuant to a
registration statement under the Securities Act), and notwithstanding such
circumstances, Debtor agrees that any such compelled private resale shall be
deemed to be in a commercially reasonable manner and that Secured Party shall
have no obligation to engage in public resales and no obligation to delay the
sale of the Collateral for the period of time necessary to permit the issuer
thereof to register it for a form of public resale required under the Securities
Act or under such applicable state securities laws, even if such issuer would
agree to do so.
7.6 Sales in Exempt Transactions. From time to time at the written
request of Secured Party, Debtor shall furnish or cause to be furnished to
Secured Party all such information as Secured Party may request in order to
determine the number of the shares and instruments included in the Collateral
which may be sold by Secured Party as exempt transactions under the Securities
Act and the rules of the Securities and Exchange Commission thereunder, as the
same are in effect from time to time.
7.7 Additional Remedies. In addition to any remedies provided herein
for an Event of Default, Secured Party shall have all the rights and remedies
afforded a secured party under the UCC and all other legal and equitable
remedies allowed under applicable law. No failure on the part of Secured Party
to exercise any of its rights hereunder arising upon any Event of Default shall
be construed to prejudice its rights upon the occurrence of any other or
subsequent Event of Default. No delay on the part of Secured Party in
exercising any such rights shall be construed to preclude it from the exercise
thereof at any time while that Event of Default is continuing. Secured Party
may enforce any one or more rights or remedies hereunder successively or
concurrently. By accepting payment or performance of any of the Secured
Obligations after its due date, Secured Party shall not thereby waive the
agreement contained herein that time is of the essence, nor shall Secured Party
waive either its right to require prompt payment or performance when due of the
remainder of the Secured Obligations or its right to consider the failure to so
pay or perform an Event of Default.
8. Miscellaneous Provisions.
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8.1 Care. Secured Party shall use such reasonable care in handling,
preserving and protecting the Collateral in its possession as it uses in
handling similar property for its own account. Secured Party, however, shall
have no liability for the loss, destruction or disappearance of any Collateral
unless there is affirmative proof of a lack of due care. A lack of due care
shall not be implied solely by virtue of any loss, destruction or disappearance.
Secured Party shall have no responsibility for (i) ascertaining or taking any
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Collateral, whether or not Secured Party has or is
deemed to have knowledge of such matters; or (ii) taking any necessary steps to
preserve rights against any persons with respect to the Collateral.
8.2 Power of Attorney. Debtor hereby appoints Secured Party as its
true and lawful attorney-in-fact, with full power of substitution, to (i)
demand, collect, receive, receipt for, sue and recover all sums of money or
other property which may now or hereafter become due, owing or payable from the
Collateral; (ii) execute, sign and endorse any and all claims, instruments,
receipts, checks, drafts or warrants issued in payment for the Collateral; (iii)
settle or compromise any and all claims arising under the Collateral, and, in
the place and stead of Debtor to execute and deliver its release and settlement
for the claim; (iv) file any claim or claims or to take any action or institute
or take part in any proceedings, either in its own name or in the name of
Debtor, or otherwise, which in the discretion of Secured Party may seem to be
necessary or advisable; and (v) execute any documents necessary to perfect or
continue the Security Interest. This power is a power coupled with an interest
and is given as security for the Secured Obligations, and the authority hereby
conferred is and shall be irrevocable and shall remain in full force and effect
until renounced by Secured Party.
8.3 Other Security. In the event that Debtor grants a security
interest in any property other than the Collateral as security for the Secured
Obligations, the acceptance of this Agreement by Secured Party shall not be
considered a waiver of or in any way to affect or impair any other security that
Secured Party may have, acquire simultaneously herewith, or hereafter acquire
for the payment or performance of the Secured Obligations, nor shall the taking
by Secured Party at any time of any such additional security be construed as a
waiver of or in any way to affect or impair the Security Interest, in which case
Secured Party may resort, for the payment or performance of the Secured
Obligations, to its several securities therefor in such order and manner as it
may determine.
8.4 Actions by Secured Party. Without notice or demand, without
affecting the obligations of Debtor hereunder, and without affecting the
Security Interest or the priority thereof, Secured Party, from time to time, may
(i) extend the time for payment of all or any part of the Secured Obligations,
accept a renewal note therefor, reduce the payments thereon, release any person
liable for all or any part thereof, or otherwise change the terms of all or any
part of the Secured Obligations; (ii) take and hold other security for the
payment or performance of the Secured Obligations and enforce, exchange,
substitute, subordinate, waive or release any such security; (iii) join in any
extension or subordination agreement; or (iv) release any part of the Collateral
from the Security Interest.
8.5 Waivers. Debtor waives and agrees not to assert (i) any right to
require Secured Party to proceed against any guarantor, to proceed against or
exhaust any other security for the Secured Obligations, to pursue any other
remedy available to Secured Party, or to pursue any remedy in any particular
order or manner; (ii) the benefits of any legal or equitable doctrine or
principle of marshalling; (iii) the benefits of any statute of limitations
affecting the enforcement hereof; (iv) demand, diligence, presentment for
payment, protest and demand, and notice of extension, dishonor, protest, demand
and nonpayment, relating to the Secured Obligations; and (v) any benefit of, and
any right to participate in, any other security now or hereafter held by Secured
Party.
8.6 Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of California, notwithstanding any
California or other conflicts-of-laws provisions to the contrary.
8.7 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same agreement.
8.8 Entire Agreement. This Agreement contains the entire agreement
and understanding of the parties with respect to the subject matter hereof,
supersedes all other prior understandings, oral or written, with respect to the
subject matter hereof, and is intended by Secured Party and Debtor as the final,
complete and exclusive statement of the terms agreed to by them.
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8.9 Amendments. No amendment, modification, change, waiver, release
or discharge hereof and hereunder shall be effective unless evidenced by an
instrument in writing and signed by the party against whom enforcement is
sought.
8.10 Section Headings. The section headings set forth in this
Agreement are for convenience only and shall not have substantive meaning
hereunder or be deemed part of this Agreement.
8.11 Time of Essence. Time is of the essence of this Agreement and
each and every provision hereof.
8.12 Severability. If any provision hereof is invalid or
unenforceable, the other provisions hereof shall remain in full force and effect
and shall be liberally construed in favor of Secured Party in order to
effectuate the other provisions hereof.
8.13 Binding Nature; Assignment. This provisions of this Agreement
shall be binding upon, and shall inure to the benefit of, the parties hereto and
their permitted successors and assigns. Secured Party may transfer all or any
part of its interest in the Note or this Agreement. Debtor shall not transfer
(by agreement, operation of law or otherwise) any right or obligation under the
Note or this Agreement, and any such purported transfer shall be void. The term
"Secured Party" shall include not only the original Secured Party hereunder but
also any future owner and holder, including, without limitation, pledgees, of
the Note or notes evidencing the Secured Obligations. The provisions hereof
shall apply to the parties according to the context thereof and without regard
to the number or gender of words or expressions used.
8.14 Indulgences, Not Waivers. Neither the failure nor any delay on
the part of either party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
future exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
8.15 Construction. This Agreement shall be construed as a whole, in
accordance with its fair meaning, and without regard to or taking into account
any presumption or other rule of law requiring construction against the party
preparing this Agreement. Each of the parties hereto acknowledges that it has
had the opportunity to review this Agreement and has had the opportunity to have
its counsel review this Agreement, and that the rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall
not be applied to the interpretation of this Agreement.
8.16 Continuing Agreement. This is a continuing Agreement which shall
remain in full force and effect until all of the Secured Obligations shall have
been paid and performed in full.
8.17 No Setoffs by Debtor. No setoff or claim that Debtor now has or
may in the future have against Secured Party shall relieve Debtor from paying or
performing the Secured Obligations.
8.18 Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received when delivered against receipt
or upon actual receipt of a facsimile or of registered or certified mail,
postage prepaid, return receipt requested, addressed as set forth below:
If to Debtor:
___________________________
___________________________
___________________________
___________________________
___________________________
Telephone:_________________
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Fax:_______________________
with a copy to:
___________________________
___________________________
___________________________
___________________________
___________________________
Telephone:_________________
Fax:_______________________
If to Secured Party:
Cumetrix Data Systems Corp.
957 Lawson Street
Industry, California 91748
Telephone:_________________
Fax:_______________________
with a copy to:
Greenberg Traurig, LLP
One East Camelback Road
Suite 1100
Phoenix, Arizona 85012
Attention: Robert S. Kant, Esq.
Telephone: (602) 263-2606
Fax: (602) 263-2350
Any party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the provisions of
this paragraph for the giving of notice.
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IN WITNESS WHEREOF, this Agreement was executed by Debtor and Secured Party
as of the date first set forth above.
DEBTOR
___________________________________
[Name]
SECURED PARTY
CUMETRIX DATA SYSTEMS, a California corporation
By:________________________________
Name:______________________________
Its:_______________________________
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EXHIBIT A
---------
PROMISSORY NOTE
<PAGE>
EXHIBIT B
---------
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
________ shares of the common stock of Cumetrix Data Systems Corp., a California
corporation (the "Company"), to ___________________________________________,
which shares are represented by Certificate No. ________, standing in the name
of the undersigned on the books of Secured Party. The undersigned hereby
irrevocably constitutes and appoints _________________________________________
as its attorney to transfer said stock on the books of Secured Party with full
power of substitution in the premises.
Dated: ___________________, 2000.
______________________________
[Name]
<PAGE>
EXHIBIT C
---------
IRREVOCABLE PROXY
KNOW ALL MEN BY THESE PRESENTS, that __________________________ ("Debtor")
hereby appoints _______________, with full power of substitution, the true and
lawful proxy and attorney-in-fact of Debtor for Debtor and in the name, place
and stead of Debtor to vote all of the shares of capital stock of Cumetrix Data
Systems Corp., a California corporation ("Company"), now or hereafter standing
in the name of Debtor, in such manner as said proxy and attorney-in-fact or his
substitute may deem appropriate, in his sole and absolute discretion, at any
annual, regular, or special meeting or meetings of the stockholders of Company
which may be held at any time, for or against such matter or matters as may be
submitted to a vote of the stockholders of Company at any time, including any
proposal to remove directors of Company or elect new directors of Company;
provided, however, that this proxy shall become effective only after the
occurrence and during the continuance of an Event of Default under and as
defined in the Stock Pledge Agreement, dated ____________, 20__, between Debtor
and Company, as Secured Party.
The power to vote such shares includes the power to execute, or refrain
from executing, a written consent to action in lieu of a stockholder meeting
with respect to such shares. Debtor hereby authorizes and empowers said proxy
as attorney-in-fact or its substitute (a) to represent and vote for Debtor at
all such meetings; (b) to consent to and waive notice of all such meetings; and
(c) generally and without limitation to do any and all acts and things which
Debtor if personally present might or could do in respect to such shares, and
Debtor hereby ratifies and confirms all that said proxy and attorney-in-fact or
its substitute may lawfully do or cause to be done by virtue of this proxy.
This proxy is coupled with an interest and is irrevocable until Debtor's
obligations to Company under the Stock Pledge Agreement and the Note to which it
relates are extinguished, at which time this proxy shall automatically expire.
IN WITNESS WHEREOF, Debtor signed this proxy as of ____________, 20__.
_________________________
[Name]
