EXHIBIT 10.3
EXHIBIT 3 to RESTRICTED STOCK AGREEMENT
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STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement is entered into as of June 1, 2001 (the
"Effective Date"), by and among DAOU Systems, Inc., a Delaware corporation (the
"Company"), and Vincent Roach (the "Pledgor"), with reference to the following
facts:
Background Statement
The Company has agreed to sell to Pledgor 2.5 million shares of the
Company's common stock, par value $.001 per share (the "Shares"), pursuant to
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that certain Stock Purchase Agreement, by and between the Company and Pledgor,
dated June 1, 2001 (the "Purchase Agreement").
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In addition the Company has agreed to loan to Pledgor $725,000 as
evidenced by that certain Secured Promissory Note (the "Note") dated June 1,
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2001.
As a material inducement for the Company to make the loan to Pledgor
and to enter into the Purchase Agreement, Pledgor has agreed to secure his
obligations under the Note by granting the Company a first priority security
interest in the Shares.
Agreement
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions contained herein, the parties hereby agree as follows:
1. Security. The term "Pledged Stock" shall mean the 2.5 million
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Shares registered in the name of Pledgor, together with all certificates,
options, rights or other distributions issued as an addition to, in substitution
or in exchange for, or on account of, any such Shares, and all proceeds of the
foregoing, as further described in and subject to the provisions of Section 4
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below, now or hereafter owned or acquired by Pledgor.
2. Grant of Security Interest. As security for full and timely
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payment, performance and satisfaction of the Obligations (as defined in
Section 3), Pledgor hereby grant to the Company a first priority security
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interest in the Pledged Stock. Upon the execution hereof, the Pledged Stock and
any related stock powers will be deposited in escrow with the Company pursuant
to Section 1.9 of the Purchase Agreement.
3. Obligations of Pledgor. As used herein, the term "Obligations"
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shall mean all of Pledgor's obligations, covenants and agreements under the
Note.
4. Pledged Stock. In the event Pledgor will become entitled to
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receive or will receive, in connection with any of the Pledged Stock, (a) any
stock certificate, including any certificate representing a stock dividend or
any certificate in connection with any increase or
reduction of capital, reclassification, merger, consolidation, sale of assets,
combination of shares, stock split or spin-off, (b) any option, warrant or
right, whether as an addition to or in substitution of any of the Pledged Stock,
or otherwise, (c) any dividend or distribution payable in property, including
securities issued as a dividend on the Pledged Stock, or (d) any other
distributions of any kind whatsoever, Pledgor will accept the same as encumbered
by the security interest created hereby, and will deliver the same forthwith to
the Company as the escrow agent (the "Escrow Agent"), in the exact form
received, including as appropriate, Pledgor's endorsement or appropriate stock
power duly executed in blank, as appropriate, to be held by the Escrow Agent, as
a part of the Pledged Stock, subject to the terms hereof; provided, however,
that as long as no Default (as defined in Section 7) is in existence, Pledgor
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will have sole voting rights with respect to the Pledged Stock.
5. Representations and Warranties of Pledgor. Pledgor warrants and
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represents to the Company that: (a) he has the power and authority to enter into
this Agreement and has the power and authority to pledge the Pledged Stock for
the purposes described herein, (b) Pledgor is the legal and beneficial owner of
all of the Pledged Stock, (c) all of the shares of the Pledged Stock are owned
by Pledgor free of any pledge, mortgage, lien or security interest of any kind,
except as created hereby, (d) the execution and delivery by Pledgor of this
Agreement, and the performance of its terms, will not result in any violation or
default under the terms of any agreement or instrument, or any law or
governmental rule or regulation applicable to Pledgor or the Pledged Stock, and
(e) upon execution and delivery by Pledgor of this Agreement and upon delivery
of the Pledged Stock to Escrow Agent, this Agreement will create a valid and
perfected first priority security interest in the Pledged Stock, and the
proceeds thereof, subject to no prior security interest.
6. Transfer of Interests. Pledgor hereby covenants that, until such
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time as the Obligations have been fully paid, performed and satisfied, except as
set forth in Section 1.2 of the Purchase Agreement, Pledgor will not sell,
convey or otherwise dispose of any of the Pledged Stock or any interest therein,
or create, incur or permit to exist any pledge, mortgage, lien, charge,
encumbrance or any security interest whatsoever in or with respect to any of the
Pledged Stock, or the proceeds thereof, other than the security interest created
hereby. No transfer shall be valid unless and until the transferee agrees that
such transfer is subject to the preexisting security interest created hereby and
such transferee executes a pledge agreement reasonably satisfactory to the
Company.
7. Default. As used herein, the term "Default" will mean the failure
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of full and timely payment or performance and satisfaction of any of the
Obligations.
8. Rights of the Company. Upon the occurrence of a Default, the
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Company may, at its option, do any one or more of the following: (a) declare all
indebtedness of Pledgor to Company to be immediately due and payable, whereupon
all unpaid principal and interest under the Note will become and be immediately
due and payable; (b) exercise any and all of the rights and remedies of a
secured party as provided for by law; (c) proceed by an action or actions at law
or in equity to recover the obligations secured hereby or to foreclose under the
terms of this Agreement and the Note and sell the collateral, or any portion
thereof, pursuant to a judgment or decree of a court or courts of competent
jurisdiction; (d) proceed immediately to have any or all of the Pledged Stock
registered in the Company's name or in the name of a nominee; (e) enforce
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one or more remedies hereunder, successively or concurrently; and (f) proceed
immediately to dispose of and realize upon the Pledged Stock, or any part
thereof, and in connection therewith, sell or otherwise dispose of and deliver
the Pledged Stock, or any part thereof, in one or more parcels at public or
private sale or sales, at any exchange, broker's board or at any of the
Company's offices or elsewhere, at such prices and on such terms as the Company
may deem best, for cash or on credit, or for future delivery without assumption
of any credit risk, with the right of the Company or any purchaser to purchase
at any such sale either the whole or any part of the Pledged Stock (in
connection with any such sale or disposition, the Company need not give more
than thirty (30) calendar days notice of the time and place of any public sale
or of the time after which a private sale may take place, which notice to
Pledgor hereby acknowledges to be reasonable).
9. Proceeds. The proceeds of any disposition of all or any part of the
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Pledged Stock, as provided in Section 8, will be applied as follows: (a) first,
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to the costs and expenses incurred in connection therewith or incidental
thereto, including the Company's attorneys' fees and legal expenses; (b) second,
to the satisfaction of the Obligations; (c) third, to the payment of any other
amounts required by applicable law; and (d) fourth, to Pledgor to the extent of
any surplus remaining. In the event that there is any deficiency due to the fact
that the proceeds from the aforesaid disposition of the Pledged Stock were
inadequate to satisfy the Obligations, Pledgor will not be liable to the Company
for such deficiency.
10. Private Sale. Pledgor recognize and acknowledge that the company
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may be unable to effect a public sale of all or a part of the Pledged Stock and
may elect to resort to one or more private sales to purchasers who will be
obligated to agree, among other things, to acquire the Pledged Stock for their
own account, for investment, and not with a view to the distribution or resale
thereof. Pledgor acknowledges that any such private sales may be at prices and
on terms less favorable than those of public sales, and agrees that such private
sales will be deemed to have been made in a commercially reasonable manner and
that the Company has no obligation to delay sale of any Pledged Stock to permit
Pledgor to register it for public sale under the Securities Act of 1933, as
amended.
11. Release of Pledged Stock. Upon the execution hereof, Pledgor will
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deliver to Escrow Agent the stock certificates representing the Pledged Stock,
including Pledgor's endorsement thereon or appropriate stock powers duly
executed in blank, as appropriate, to be held by the Escrow Agent in accordance
with the terms of this Agreement and Section 1.9 of the Purchase Agreement.
12. Performance by Pledgor. Upon full payment and performance of all of
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the Obligations by Pledgor and upon payment of all additional costs and expenses
provided herein, this Agreement will terminate, and the Company will deliver or
caused to be delivered to Pledgor, such of the Pledged Stock that has not been
sold or otherwise disposed of pursuant to this Agreement.
13. Remedies. The rights and remedies provided herein are cumulative
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and are in addition to, and not exclusive of, any rights or remedies provided in
other instruments and agreements between the Company and Pledgor, or as provided
by law.
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14. Legend. As long as the shares are subject to this Agreement, such
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shares shall bear the following legend:
THE SHARES REPRESENTED HEREBY ARE SUBJECT TO THAT CERTAIN STOCK PLEDGE
AGREEMENT, DATED JUNE 1, 2001 BY AND BETWEEN DAOU SYSTEMS, INC. AND
VINCENT ROACH AND MAY NOT BE ASSIGNED, SOLD OR TRANSFERRED EXCEPT AS
PROVIDED THEREIN.
15. Successors and Assigns. This Agreement is binding upon and will
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inure to the benefit of the parties hereto, and their successors and assigns.
16. Governing Law. This Agreement will be governed by and construed in
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accordance with California law, without regards to the principles of the
conflict of laws.
17. Notices. All notices, consents, waivers, and other communications
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under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by facsimile (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Company: DAOU Systems, Inc.
5120 Shoreham Place
San Diego, California 92122
Attention: Jim Roberto
Facsimile No.: (858) 452-1338
With a copy to: Baker & McKenzie
101 W. Broadway, 12th Floor
San Diego, California 92121-3890
Attention: Abby B. Silverman
Facsimile No.: (619) 236-0429
If to Pledgor: Vincent Roach
101 West Washington Street, Suite 1110-E
Indianapolis, IN 46240
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With a copy to: Gibson, Dunn & Crutcher, LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5306
Attention: Brian Lane
Facsimile No.: (202) 530-9589
18. Entire Agreement. This Agreement and any other agreement expressly
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referred to herein supersedes any and all other agreements, either oral or in
writing, among the parties hereto, with respect to the subject matter hereof and
contains all of the covenants and agreements among the parties with respect to
the subject matter hereof.
19. Waiver; Modification. No term or condition of this Agreement will
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be deemed to have been waived nor will there by any estoppel to enforce any
provision of this Agreement except by written instrument of the party charged
with such waiver or estoppel. No amendment or modification of this Agreement
will be deemed effective unless and until executed in writing by all of the
parties hereto.
20. Severability. All agreements and covenants contained herein are
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severable and in the event that any of them will be held to be invalid by any
court of competent jurisdiction, this Agreement will be interpreted as if such
invalid agreements or covenants were not contained herein.
21. Delay; Time of Essence. No failure or delay by a party in
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exercising any right, power, or privilege hereunder will operate as a waiver
thereof, and no single or partial exercise thereof will preclude any other or
further exercise or the exercise of any other right, power, or privilege. Time
is of the essence of each and every provision of this Agreement of which time is
an element.
22. Attorneys' Fees. In any action or proceeding brought to enforce or
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interpret any provision of this Agreement, the prevailing party will be entitled
to recover reasonable attorneys' fees in addition to any other available remedy.
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IN WITNESS WHEREOF, the parties have executed this Stock Pledge
Agreement effective as of the date first written above.
Pledgor:
By: /s/ Vincent K. Roach
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Vincent Roach
The Company
DAOU Systems, Inc.
By: /s/ James T. Roberto
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Name: James T. Roberto
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Its: Chief Executive Officer
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Signature Page to Stock Pledge Agreement,
Executed August 1, 2001,
to be Effective as of the Date First Written Above
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