Promissory Note - 911Gifts Inc. and Hilary Billings
EXHIBIT C
PROMISSORY NOTE
$24,389.20 San Francisco, California
July 21, 1999
For value received, the undersigned promises to pay 911Gifts, Inc., a
Delaware corporation (the "Company"), at its principal office the principal sum
of $24,389.20 with interest from the date hereof at a rate of 5.74% per annum,
compounded semiannually, on the unpaid balance of such principal sum. Such
principal and interest shall be due and payable on July 20, 2003.
If the undersigned's employment or consulting relationship with the
Company is terminated prior to payment in full of this Note, this Note shall be
immediately due and payable.
Principal and interest are payable in lawful money of the United States
of America. AMOUNTS DUE UNDER THIS NOTE MAY BE PREPAID AT ANY TIME WITHOUT
INTEREST OR PENALTY.
Should suit be commenced to collect any sums due under this Note, such
sum as the Court may deem reasonable shall be added hereto as attorneys' fees.
The makers and endorsers have severally waived presentment for payment, protest
notice of protest and notice of nonpayment of this Note.
This Note, which is full recourse, is secured by a pledge of certain
shares of Common Stock of the Company and is subject to the terms of a Pledge
and Security Agreement between the undersigned and the Company of even date
herewith.
/s/ Hilary Billings
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Hilary Billings
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EXHIBIT D
PLEDGE AND SECURITY AGREEMENT
This Pledge and Security Agreement (the "Agreement") is entered into
this 21st day of July by and between 911Gifts, Inc., a Delaware corporation
(the "Company") and Hilary Billings ("Purchaser").
RECITALS
In connection with Purchaser's exercise of an option to purchase
certain shares of the Company's Common Stock (the "Shares") pursuant to an
Option Agreement dated May 18, 1999 between Purchaser and the Company, Purchaser
is delivering a promissory note of even date herewith (the "Note") in full or
partial payment of the exercise price for the Shares. The company requires that
the Note be secured by a pledge of the Shares of the terms set forth below.
AGREEMENT
In consideration of the Company's acceptance of the Note as full or
partial payment of the exercise price of the Shares, and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. The Note shall become payable in full upon the voluntary or
involuntary termination or cessation of employment of Purchaser with the
Company, for any reason, with or without cause (including death or disability).
2. Purchaser shall deliver to the Secretary of the Company, or
his or her designee (hereinafter referred to as the "Pledge Holder"), all
certificates representing the Shares, together with an Assignment Separate from
Certificate in the form attached to this Agreement as Attachment A executed by
Purchaser and by Purchaser's spouse (if required for transfer), in blank, for
use in transferring all or a portion of the Shares to the Company if, as and
when required pursuant to this Agreement. In addition, if Purchaser is married,
Purchaser's spouse shall execute the signature page attached to this Agreement.
3. As security for the payment of the Note and any renewal,
extension or modification of the Note, Purchaser hereby grants to the Company a
security interest in and pledges with and delivers to the Company Purchaser's
Shares (sometimes referred to herein as the "Collateral").
4. In the event that Purchaser prepays all or a portion of the
Note, in accordance with the provisions thereof, Purchaser intends, unless
written notice to the contrary is delivered to the Pledge Holder, that the
Shares represented by the portion of the Note so repaid, including annual
interest thereon, shall continue to be so held by the Pledge Holder, to serve as
independent collateral for the outstanding portion of the Note for the purpose
of commencing the holding period set forth in Rule 144(d) promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
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5. In the event of any foreclosure of the security interest
created by this Agreement, the Company may sell the Shares at a private sale or
may repurchase the Shares itself. The parties agree that, prior to the
establishment of a public market for the Shares of the Company, the securities
laws affecting sale of the Shares make a public sale of the Shares commercially
unreasonable. The parties further agree that the repurchasing of such Shares by
the Company, or by any person to whom the Company may have assigned its rights
under this Agreement, is commercially reasonable if made at a price determined
by the Board of Directors in its discretion, fairly exercised, representing what
would be the fair market value of the Shares reduced by any limitation on
transferability, whether due to the size of the block of shares or the
restrictions of applicable securities laws.
6. In the event of default in payment when due of any
indebtedness under the Note, the Company may elect then, or at any time
thereafter, to exercise all rights available to a secured party under the
California Commercial Code including the right to sell the Collateral at a
private or public sale or repurchase the Shares as provided above. The proceeds
of any sale shall be applied in the following order:
(a) To the extent necessary, proceeds shall be used to
pay all reasonable expenses of the Company in enforcing this Agreement and the
Note, including, without limitation, reasonable attorney's fees and legal
expenses incurred by the Company.
(b) To the extent necessary, proceeds shall be used to
satisfy any remaining indebtedness under Purchaser's Note.
(c) Any remaining proceeds shall be delivered to
Purchaser.
7. Upon full payment by Purchaser of all amounts due under the
Note, Pledge Holder shall deliver to Purchaser all Shares in Pledge Holder's
possession belonging to Purchaser, and Pledge Holder shall thereupon be
discharged of all further obligations under this Agreement; provided, however,
that Pledge Holder shall nevertheless retain the Shares as escrow agent if at
the time of full payment by Purchaser said Shares are still subject to a
Repurchase Option in favor of the Company.
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The parties have executed this Pledge and Security Agreement as of the
date first set forth above.
COMPANY:
911GIFTS, INC.
By: /s/ Hilary Billings
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Name: Hilary Billings
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(print)
Title: Pres. & CEO
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Address:
3647 India Street
San Diego, CA 92103
PURCHASER:
HILARY BILLINGS
/s/ Hilary Billings
------------------------------------
(Signature)
/s/ Hilary Billings
------------------------------------
(Print Name)
Address:
2021 Lake Street
San Francisco, CA 94121
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ATTACHMENT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Pledge and Security
Agreement between the undersigned ("Purchaser") and 911 Gifts, Inc. (the
"Company") dated ___________, _____ (the "Agreement"), Purchaser hereby sells,
assigns and transfers unto the Company ______________________ (_____) shares of
the Common Stock of the Company, standing in Purchaser's name on the books of
the Company and represented by Certificate No._____, and does hereby irrevocably
constitute and appoint ______________________ to transfer said stock on the
books of the Company with full power of substitution in the premises. THIS
ASSIGNMENT MAY ONLY BE USED AS AUTHORIZED BY THE AGREEMENT.
Dated: ____________
Signature:
/s/ Hilary Billings
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Hilary Billings
/s/ [ILLEGIBLE]
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Spouse of Hilary Billings (if applicable)
Instruction: Please do not fill in any blanks other than the signature line. The
purpose of this assignment is to perfect the security interest of the Company
pursuant to the Agreement.