General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 8 32K
2: EX-1 Underwriting Agreement 22 78K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 11 39K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 20 72K
5: EX-4 Instrument Defining the Rights of Security Holders 13 57K
6: EX-5 Opinion re: Legality 2 10K
7: EX-6 Opinion re: Discount on Capital Shares 3 15K
8: EX-7 Opinion re: Liquidation Preference 5 20K
Exhibit 7
SHAREHOLDER AGREEMENT
This Shareholder Agreement (the "Agreement"), dated as of May __, 2000,
is by and between ___________________________________, a shareholder (the
"Shareholder") of PhotoLoft.com, a Nevada corporation (the "Company"), and
Intellect Capital Group, LLC, a Delaware limited liability company ("ICG"). All
terms used herein and not defined herein shall have the meanings assigned
thereto in the Purchase Agreement or the Letter Agreement, as applicable (each
as defined below).
Whereas, ICG and the Company have agreed to enter into a Stock Purchase
Agreement, dated as of April 18, 2000 and executed as of the date hereof (the
"Purchase Agreement") whereby the Company shall issue to ICG shares of the
Company's Series B Preferred Stock convertible into a number of shares of the
Company's Common Stock (the "Conversion");
WHEREAS, the Purchase Agreement is supplemented by a Letter Agreement
dated the date hereof ("Letter Agreement") which sets forth certain obligations
of the Company to ICG relating to the Conversion, including the requirement that
the Company amend its Articles of Incorporation to increase the number of its
authorized shares of Common Stock from 50,000,000 to 200,000,000 ("Amendment");
WHEREAS, the Amendment requires the approval of at least a majority of
the outstanding shares of the Company's Common Stock;
WHEREAS, the Shareholder owns the number of shares of Company Common
Stock set forth beneath the Shareholder's signature (the "Shares"); and
WHEREAS, in consideration of the substantial risks and expenses incurred
and to be incurred by ICG in connection with the Purchase Agreement and the
Letter Agreement, the Shareholder, solely in such Shareholder's capacity as a
shareholder of the Company and not in any other capacity, has agreed to enter
into and perform this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. AGREEMENT TO VOTE SHARES. Shareholder shall vote or
cause to be voted, or execute a written consent with respect to, the Shares then
held of record or beneficially owned, directly or indirectly, by such
Shareholder in favor of the Amendment either at a meeting of the shareholders of
the Company at which such Amendment is considered and at every adjournment
thereof or in connection with every proposal to take action by written consent
with respect thereto.
2. NO VOTING TRUSTS. Shareholder agrees that Shareholder
will not, nor will Shareholder permit any entity under Shareholder's control to,
deposit any Shares in a voting trust or subject the Shares to any agreement,
arrangement or understanding with respect to the voting of the Shares
inconsistent with this Agreement,
3. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER.
Shareholder represents and warrants to and agrees with ICG as follows:
a. CAPACITY. Shareholder has all requisite capacity and authority
to enter into and perform his or her obligations under this Agreement.
b. BINDING AGREEMENT. This Agreement constitutes the valid and
legally binding obligation of Shareholder, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
c. NON-CONTRAVENTION. The execution and delivery of this Agreement
by Shareholder does not, and the performance by Shareholder of his or her
obligations hereunder and the consummation by Shareholder of the transactions
contemplated hereby will not, violate or conflict with, or constitute a default
under, any agreement, instrument, contract or other obligation or any order,
arbitration award, judgment or decree to which Shareholder is a party or by
which Shareholder is bound, or any statute, rule or regulation to which
Shareholder is subject or, in the event that Shareholder is a corporation,
partnership, trust or other entity, any charter, bylaw or other organizational
document of the Shareholder.
d. OWNERSHIP OF SHARES. Shareholder has good title to all of the
Shares as of the date hereof, and, except as set forth on Annex A hereto, the
Shares are so owned free and clear of any liens, security interests, charges or
other encumbrances.
4. SPECIFIC PERFORMANCE AND REMEDIES. Shareholder
acknowledges that it will be impossible to measure in money the damage to ICG if
Shareholder fails to comply with the obligations imposed by this Agreement and
that, in the event of any such failure, ICG will not have an adequate remedy at
law or in damages. Accordingly, Shareholder agrees that injunctive relief or
other equitable remedy, in addition to remedies at law or in damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that ICG has an adequate remedy at law. Shareholder agrees
that it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with ICG's seeking or obtaining such equitable
relief. In addition, after discussing the matter with Shareholder, ICG shall
have the right to inform any third party that ICG reasonably believes to be, or
to be contemplating, participating with Shareholder or receiving from
Shareholder assistance in violation of this Agreement, of the terms of this
Agreement and of the rights of ICG hereunder, and that participation by any such
persons with Shareholder in activities in violation of Shareholder's agreement
with ICG set forth in this Agreement may give rise to claims by ICG against such
third party.
5. TERM OF AGREEMENT; TERMINATION.
a. The term of this Agreement shall commence on the date hereof.
b. This Agreement shall terminate upon the date, if any, of the
termination of the Purchase Agreement prior to the Conversion Date in accordance
with its terms. Upon such termination, no party shall have any farther
obligations or liabilities
hereunder; PROVIDED HOWEVER, such termination shall not relieve any party from
liability for any breach of this Agreement prior to such termination.
6. ENTIRE AGREEMENT. This Agreement supersedes all prior
agreements, written or oral, among the parties hereto with respect to the
subject matter hereof and contains the entire agreement among the parties with
respect to the subject matter hereof. This Agreement may not be amended,
supplemented or modified, and no provisions hereof may be modified or waived,
except by an instrument in writing signed by each party hereto. No waiver of any
provisions hereof by either party shall be deemed a waiver of any other
provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
7. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by a
reputable overnight courier service to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
IF TO ICG:
Intellect Capital Group, LLC
11111 Santa Monica Blvd.
Suite 650
Los Angeles, California 90025
Attention: Terren S. Peizer
Facsimile: (310) 479-2959
WITH A COPY TO:
Manatt, Phelps & Phillips, LLP
11355 West Olympic Blvd.
Los Angeles, California 90064
Attention: Robert Platt, Esq.
Facsimile: (310) 312-4224
IF TO THE SHAREHOLDER:
___________________________________
___________________________________
___________________________________
Attention: ________________________
Facsimile: ________________________
8. MISCELLANEOUS.
a. SEVERABILITY. If any provision of this Agreement or the
application of such provision to any person or circumstances shall be held
invalid or unenforceable by a court of competent jurisdiction, such provision or
application shall be unenforceable only to the extent of such invalidity or
unenforceability, and the remainder of the provision held invalid or
unenforceable and the application of such provision to persons or circumstances,
other than the party as to which it is held invalid, and the remainder of this
Agreement, shall not be affected.
b. CAPACITY. The covenants contained herein shall apply to
Shareholder solely in his or her capacity as a shareholder of the Company, and
no covenant contained herein shall apply to Shareholder in his or her capacity
as a director or officer, if applicable, of the Company.
c. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
d. HEADINGS. All Section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
e. CHOICE OF LAW. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of California, without reference to its conflicts of law principles.
9. ATTORNEY'S FEES. The prevailing party or parties in any
litigation, arbitration, mediation, bankruptcy, insolvency or other proceeding
("Proceeding") relating to the enforcement or interpretation of this Agreement
may recover from the unsuccessful party or parties all fees and disbursements of
counsel (including expert witness and other consultants' fees and costs)
relating to or arising out of (a) the Proceeding (whether or not the Proceeding
proceeds to judgment), and (b) any post-judgment or post-award proceeding
including, without limitation, one to enforce or collect any judgment or award
resulting from the Proceeding. All such judgments and awards shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, and fees and disbursements of counsel.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
INTELLECT CAPITAL GROUP, LLC
By: _______________________________
Terren S. Peizer
Chief Executive Officer
SHAREHOLDER:
_______________________________
(Print or type name)
_______________________________
(Signature)
_______________________________
Shares
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘SC 13D’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 6/19/00 | | | | | | | None on these Dates |
| | 4/18/00 | | 1 |
| List all Filings |
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