{"id":40076,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/loan-and-security-agreement-at-home-corp-mark-a-mceachen-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"loan-and-security-agreement-at-home-corp-mark-a-mceachen-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/loan-and-security-agreement-at-home-corp-mark-a-mceachen-and.html","title":{"rendered":"Loan and Security Agreement &#8211; At Home Corp., Mark A. McEachen and Joanne McEachen"},"content":{"rendered":"<pre>\n                          LOAN AND SECURITY AGREEMENT\n\n     This Loan and Security Agreement (as from time to time amended,\nsupplemented, restated, or otherwise modified, this \"Agreement\") is entered into\neffective August 17, 2000 (the \"Effective Date\") by and among At Home\nCorporation, a Delaware corporation (\"Lender\") and Mark A. McEachen, an\nindividual and Joanne McEachen, his spouse (collectively, \"Borrower\").  This\nAgreement, the Note (defined in Section 1.1), the Stock Pledge Agreement\n(defined in Section 1.3) and any other documents entered into pursuant to this\nAgreement or in connection with this Loan (defined in Section 1.1) are\nhereinafter sometimes collectively referred to as the \"Loan Documents.\"\n\n     WHEREAS, Lender desires to loan a certain sum to Borrower and Borrower\nwishes to borrow a certain sum from Lender;\n\n     NOW, THEREFORE, in consideration of the mutual promises, representations,\nwarranties and covenants set forth in this Agreement, Lender and Borrower hereby\nagree as follows:\n\n     1.  AMOUNT AND TERMS OF LOAN.\n         ------------------------ \n\n          1.1  Loan.  Subject to the terms and conditions of this Agreement, and\n               ----                                                             \nin reliance on the representations, warranties and covenants of Borrower in this\nAgreement, Lender shall loan Borrower the principal amount of One Million Five\nHundred Thousand Dollars ($1,500,000) (this \"Loan\").  Borrower's indebtedness to\nLender under the Loan Documents will be evidenced by a Secured Promissory Note\nexecuted by Borrower substantially in the form attached hereto as Exhibit A (the\n                                                                  ---------     \n\"Note\").\n\n          1.2  Interest.  The Note will provide that semi-annually compounded\n               --------                                                      \ninterest on the unpaid principal of this Loan (except as provided in Section\n1.5) will accrue at a rate equal to six and twenty-three hundredths percent\n(6.23%) per annum.  Interest will continue to accrue until the date on which all\namounts owing under the Loan Documents have been repaid in full.\n\n          1.3  Security.  Borrower's indebtedness to Lender under the Loan\n               --------                                                   \nDocuments will be secured by Borrower's pledge of certain shares of Lender\nequity securities (the \"Pledged Shares\") in accordance with the terms of a stock\npledge agreement, dated of even date herewith, substantially in the form\nattached as Exhibit B (the \"Stock Pledge Agreement\").  Borrower shall\n            ---------                                                \nimmediately submit to Lender upon issuance all Lender equity securities that\nBorrower acquires pursuant to: (a) Borrower's exercise of options to purchase\nLender equity securities under Lender's 1997 Equity Incentive Plan, 2000 Stock\nIncentive Plan or any subsequent or similar stock option plan of Lender, (b)\n1997 Employee Stock Purchase Plan or any subsequent or similar employee stock\npurchase agreement, or (c) any other similar employee benefit plan of Lender.\n\n          1.4  Maturity of Loan.  The unpaid principal amount of this Loan and\n               ----------------                                               \nall unpaid interest accrued thereon, together with any other related fees,\nexpenses or costs, will be immediately due and payable to Lender in full on the\ndate (the \"Maturity Date\") that is the \n\n \nearlier to occur of: (a) August 17, 2004, or (b) the date on which the unpaid\nprincipal amount and interest due under this Loan becomes due and payable under\nSection 2.1.\n\n          1.5  Forgiveness of Loan.  On each of August 17, 2001, 2002, 2003 and\n               -------------------                                             \n2004, unless the unpaid principal amount and interest due under this Loan has\nbecome due and payable under Section 2.1 on or before such date, Lender shall\nforgive $375,000 of the principal amount of this Loan and all unpaid interest\naccrued thereon as of such date.\n\n          1.6  Tax.  For each year that Lender forgives a portion of the Loan\n               ---                                                           \npursuant to Section 1.5, Lender will also pay Borrower, on December 31 of each\nsuch year, a cash amount equal to Borrower's tax liability for such Loan\nforgiveness.  Borrower will be responsible for any other tax liability it incurs\nin connection with this Loan and its repayment.\n\n          1.7  Prepayment.  Borrower may prepay the unpaid principal and\n               ----------                                               \ninterest due under this Loan at any time, without penalty, in whole or in part\nin amounts of at least Ten Thousand Dollars ($10,000).  Each prepayment will be\napplied as follows: (a) first to the payment of accrued interest, and (b)\nsecond, to the extent that the amount of such prepayment exceeds the amount of\nall such accrued interest, to the payment of principal on this Loan.  Borrower\nalso agrees that, until this Loan is paid in full, Borrower shall: (i) if no\ndefault event has occurred under the Loan Documents and is continuing,\nimmediately apply fifty percent (50%) of the net before tax proceeds from any\nsale by Borrower of the Pledged Shares, or (ii) if a default event has occurred\nand is continuing, immediately apply one hundred percent (100%) of the net\nbefore tax proceeds from any sale by Borrower of the Pledged Shares, to pay down\nthis Loan in accordance with this Agreement.\n\n          1.8  At Will Employment.  Borrower is an \"at will\" employee of Lender,\n               ------------------                                               \nand nothing in this Agreement or any exhibit shall be construed as a promise of\ncontinued employment.\n\n     2.   DEFAULT BY BORROWER.\n          ------------------- \n\n          2.1  Acceleration.  The unpaid principal and interest due under this\n               ------------                                                   \nLoan will become immediately due and payable, without the need for any further\naction on the part of Lender or any other holder of the Note: (a) on the date\nthat is ninety (90) days after the date of termination of Borrower's employment\nwith Lender for any reason other than termination without cause by Lender (as\n\"cause\" is defined in Lender's employment offer letter to Borrower dated June\n29, 2000 (the \"Offer Letter\")); or (b) upon Borrower's failure to apply the\nappropriate proceeds of any sale of Pledged Shares to pay down this Loan in\naccordance with Section 1.7.\n\n          2.2  Default.  Borrower will be deemed to be in default of this Loan\n               -------                                                        \nif: (a) Borrower fails to pay Lender (or, in the event another party holds the\nNote, such holder) the full amount of unpaid principal and interest due under\nthis Loan on or before the Maturity Date, and (b) Borrower does not cure this\nfailure to pay within five (5) calendar days after Lender gives Borrower written\nnotice of such failure to pay.\n\n                                      -2-\n\n \n          2.3  Remedies Upon Default.  Upon Borrower's default of this Loan,\n               ---------------------                                        \nLender may pursue its rights under the Note and the Stock Pledge Agreement.  The\nrights and remedies of Lender herein provided are cumulative, and are not\nexclusive of any other rights or remedies provided by law or otherwise.\n\n     3.   MISCELLANEOUS.\n          ------------- \n\n          3.1  Entire Agreement.  The Loan Documents constitute the entire\n               ----------------                                           \nagreement and understanding among the parties with respect to the subject matter\nthereof and supersedes any prior understandings or agreements of the parties\nwith respect to such subject matter.\n\n          3.2  Successors and Assigns.  The terms and conditions of this\n               ----------------------                                   \nAgreement will inure to the benefit of and be binding upon the respective\nsuccessors and assigns of the parties, including any subsequent holders of the\nNote; provided, however, that Borrower may not assign or delegate any of its\n      --------  -------                                                     \nrights or obligations hereunder or under any other Loan Document or any interest\nherein or therein without Lender's prior written consent.\n\n          3.3  No Third Party Beneficiaries.   Nothing in this Agreement,\n               ----------------------------                              \nexpress or implied, is intended to confer upon any third party any rights,\nremedies, obligations, or liabilities under or by reason of this Agreement,\nexcept as expressly provided in this Agreement.\n\n          3.4  Construction.  This Agreement and its exhibits are the result of\n               ------------                                                    \nnegotiations between the parties and have been reviewed by each party hereto.\nAccordingly, this Agreement will be deemed to be the product of the parties\nhereto and no ambiguity will be construed in favor of or against any party.\n\n          3.5  Section Titles.  The Section titles contained in this Agreement\n               --------------                                                 \nare and will be without substantive meaning or content of any kind and are not\npart of this Agreement.\n\n          3.6  Modification; Waiver.  This Agreement may be modified or amended\n               --------------------                                            \nonly by a writing signed by both parties hereto.  No waiver or consent with\nrespect to this Agreement will be binding unless it is set forth in writing and\nsigned by the party against whom such waiver is asserted.  No course of dealing\nbetween Borrower and Lender will operate as a waiver or modification of any\nparty's rights under this Agreement or any other Loan Document.  No delay or\nfailure on the part of either party in exercising any right or remedy under this\nAgreement or any other Loan Document will operate as a waiver of such right or\nany other right.  A waiver given on one occasion will not be construed as a bar\nto, or as a waiver of, any right or remedy on any future occasion.\n\n          3.7  Further Assurances.  In addition to the obligations and documents\n               ------------------                                               \nthat this Agreement expressly requires Borrower to execute, deliver and perform,\nBorrower will execute, deliver and perform any and all further acts or documents\nwhich Lender may reasonably require in order to carry out the purposes of this\nAgreement or any of the other Loan Documents.\n\n          3.8  Severability.  The invalidity or unenforceability of any term or\n               ------------                                                    \nprovision of this Agreement will not affect the validity or enforceability of\nany other term or provision.\n\n                                      -3-\n\n \n          3.9  Governing Law.  This Agreement will be exclusively governed by\n               -------------                                                 \nand construed in accordance with the internal laws of the State of California,\nas applied to agreements entered into solely between residents of and to be\nperformed entirely in the State of California, without reference to that body of\nlaw relating to conflicts of law or choice of law.\n\n          3.10  Jurisdiction.  The parties agree that any controversy or claim\n                ------------                                                  \narising out of or relating to this Agreement shall be tried and litigated\nexclusively in a state or federal court with jurisdiction located in San Mateo\nCounty in the State of California.\n\n          3.11  Waiver of Jury Trial.  The parties waive any right they may have\n                --------------------                                            \nto a trial by jury in respect of any litigation based on, or arising out of,\nunder or in connection with, this Agreement or any other Loan Document, or any\ncourse of conduct, course of dealing, verbal or written statement or other\naction of any loan party or any secured party.\n\n          3.12  Attorneys' Fees.  If either party hereto commences or maintains\n                ---------------                                                \nany action at law or in equity (including counterclaims or cross-complaints)\nagainst the other party hereto by reason of the breach or default or claimed\nbreach or default of any term or provision of this Agreement or any other Loan\nDocument, then the prevailing party in said action will be entitled to recover\nits reasonable attorneys' fees and court costs incurred therein.  This provision\ndoes not limit Lender's ability to recover additional expenses under the Note.\n\n          3.13  Counterparts.  This Agreement may be executed in one or two\n                ------------                                               \ncounterparts, each of which will be deemed an original, but together will\nconstitute one and the same instrument.\n\n\n          [The remainder of this page was left blank intentionally.]\n\n                                      -4-\n\n \n     IN WITNESS WHEREOF, the parties have duly executed and delivered this\nAgreement as of the Effective Date.\n\nBORROWER:                                    LENDER:\n                                             At Home Corporation\n\n\/s\/ Mark A. McEachen                         \/s\/ George Bell\n____________________________                 _________________________________ \nMark A. McEachen                             George Bell, Chairman and\n                                             Chief Executive Officer\n\n\n \n____________________________\n_____________\n\n\n\n\n\nAttachments:\n----------- \n\nExhibit A - Secured Promissory Note\nExhibit B - Stock Pledge Agreement\n\n                                      -5-\n\n \n                            SECURED PROMISSORY NOTE\n                            -----------------------\n\n                                                        Redwood City, California\n\n$1,500,000                                                       August 17, 2000\n\n     For value received, Mark A. McEachen, an individual, and Joanne McEachen,\nhis spouse (collectively, \"Borrower\") hereby promise to pay to the order of At\nHome Corporation, a Delaware corporation (the \"Company\") on or before August 17,\n2004 (the \"Maturity Date\"), at the Company's principal place of business at 450\nBroadway Street, Redwood City, California 94603, or at such other place as the\nCompany may direct, the principal sum of One Million Five Hundred Thousand\nDollars ($1,500,000), together with interest at the rate of six and twenty-three\nhundredths percent (6.23%) compounded semi-annually, which rate is the minimum\nrate established pursuant to Section 1274(d) of the Internal Revenue Code of\n1986, as amended, for August 2000; provided, however, that the rate at which\n                                   --------  -------                        \ninterest will accrue on unpaid principal under this secured promissory note (as\nmay be amended, restated, supplemented, or otherwise modified from time to time,\nthis \"Note\") will not exceed the highest rate permitted by applicable law.\nExcept as provided by Section 2, accrued interest is payable in full on the\nMaturity Date.  Interest will continue to accrue until the date on which all\namounts owing on this Note have been repaid in full.\n\n     This Note is issued pursuant to that certain Loan and Security Agreement\ndated as of the date hereof between the Company and Borrower (the \"Loan\nAgreement\").  The following is a statement of the additional rights and\nobligations of the holder of this Note and the terms and conditions to which\nthis note is subject, and to which the holder, by the acceptance of this Note,\nagrees as follows:\n\n     1.  Security.  Payment of this Note is secured by Borrower's pledge of\n         --------                                                          \ncertain shares of Company equity securities (the \"Pledged Shares\") in accordance\nwith the terms of a stock pledge agreement between the Company and Borrower.\n\n     2.  Acceleration.  The unpaid principal and interest due under this Note\n         ------------                                                        \nwill become immediately due and payable, without the need for any further action\non the part of the Company or any other holder of this Note: (a) on the date\nthat is ninety (90) days after the date of termination of Borrower's employment\nwith the Company for any reason other than termination without cause by the\nCompany (as \"cause\" is defined in the Company's employment offer letter to\nBorrower dated June 29, 2000 (the \"Offer Letter\")); or (b) upon Borrower's\nfailure to apply the appropriate proceeds of any sale of Pledged Shares to pay\ndown this Note in accordance with Section 4.  Each of the events described in\nthis Section 2 constitutes an \"Acceleration Event\".\n\n     3.  Default.  Borrower will be deemed to be in default under this Note if:\n         -------                                                               \n(a) Borrower fails to pay the holder of this Note the full amount of unpaid\nprincipal and interest due under this Note on or before: (i) the date that is\nfour years after the date of this Note, or (ii) such \n\n \nearlier date as dictated by the occurrence of an Acceleration Event; and (b)\nBorrower does not cure this failure to pay within five (5) calendar days after\nthe Company gives Borrower written notice of such failure to pay.\n\n     4.  Prepayment. Borrower may prepay the unpaid principal and interest due\n         ----------                                                           \nunder this Note at any time, without penalty, in whole or in part in amounts of\nat least Ten Thousand Dollars ($10,000).  Each prepayment will be applied as\nfollows: (a) first to the payment of accrued interest, and (b) second, to the\nextent that the amount of such prepayment exceeds the amount of all such accrued\ninterest, to the payment of principal on this Note.  Borrower also agrees that,\nuntil this Note is paid in full, Borrower shall immediately apply: (i) if no\ndefault event has occurred and is continuing, fifty percent (50%) of the net\nbefore tax proceeds from any sale by Borrower of the Pledged Shares, or (ii) if\na default event has occurred and is continuing, one hundred percent (100%) of\nthe net before tax proceeds from any sale by Borrower of the Pledged Shares, to\npay down this Note in accordance with this Note and the Loan Agreement.\n\n     5.  Assignment.  This Note is freely transferable and assignable by the\n         ----------                                                         \nCompany and each subsequent holder, provided that such transfer is made in\ncompliance with all applicable state and federal securities laws.  Any reference\nto the Company herein will be deemed to refer to any subsequent transferee of\nthis Note at such time as such transferee holds this Note.   Borrower may not\nassign or delegate this Note, whether by voluntary assignment or transfer,\noperation of law or otherwise.\n\n     6.  Governing Law.  This Note will be exclusively governed by and construed\n         -------------                                                          \nin accordance with the internal laws of the State of California, as applied to\nagreements entered into solely between residents of and to be performed entirely\nin the State of California, without reference to that body of law relating to\nconflicts of law or choice of law.\n\n     7.  Waivers by Borrower; Amendment.  Borrower hereby waives presentment,\n         ------------------------------                                      \nnotice of non-payment, notice of dishonor, protest, demand and diligence.  This\nNote may be amended only by a writing executed by Borrower and the Company.\n\n                                      -2-\n\n \n     IN WITNESS WHEREOF, Borrower has executed this Note as of the date and year\nfirst above written.\n\n\n                              BORROWER:\n\n\n                              \/s\/ Mark A. McEachen\n                              _________________________________  \n                              Mark A. McEachen\n\n\n\n \n                              _________________________________\n                              _________________\n\n\nACCEPTED AND ACKNOWLEDGED:\n\nTHE COMPANY:\n\nAt Home Corporation\n\n\n\/s\/ George Bell\n______________________________ \nGeorge Bell, Chairman and\nChief Executive Officer\n\n                                      -3-\n\n \n                             STOCK PLEDGE AGREEMENT\n                                        \n\n     This Stock Pledge Agreement is entered into effective August 17, 2000 (as\nfrom time to time amended, restated, supplemented, or otherwise modified, this\n\"Agreement\"), by Mark A. McEachen, an individual and Joanne McEachen, his spouse\n(collectively, \"Pledgor\") in favor of At Home Corporation, a Delaware\ncorporation (\"Secured Party\").\n\n\n     WHEREAS, Pledgor and Secured Party have entered into that certain Loan and\nSecurity Agreement dated as of the date hereof (as may be amended, supplemented\nor otherwise modified from time to time, the \"Loan Agreement\"). The term \"Loan\nDocuments\" and all other capitalized terms used in this Agreement that are not\notherwise defined in this Agreement shall have the meanings ascribed to such\nterms in the Loan Agreement; and\n\n     WHEREAS, all shares of Secured Party capital stock or other equity\nsecurities that Borrower acquires pursuant to: (a) Pledgor's exercise of options\nto purchase Secured Party equity securities under Secured Party's 1997 Equity\nIncentive Plan, 2000 Stock Incentive Plan or any subsequent or similar stock\noption plan of Secured Party, (b) Secured Party's 1997 Employee Stock Purchase\nPlan or any subsequent or similar employee stock purchase agreement, or (c) any\nother similar employee benefit plan of Secured Party, are to be issued by\nSecured Party subject to the terms of this Agreement immediately upon their\nissuance.  All such Secured Party equity securities shall be identified on\n                                                                          \nSchedule 1 or on an Addendum to Schedule 1 upon their issuance; and\n----------                      ----------                         \n\n     WHEREAS, Pledgor is the legal and beneficial owner of the shares of capital\nstock or other equity securities identified on such Schedule 1 or addenda as\n                                                    ----------              \nbeing owned by Pledgor (collectively, the \"Pledged Shares\"); and\n\n     WHEREAS, it is a condition precedent under the Loan Agreement to making the\nLoan that Pledgor shall agree to make the pledges contemplated by this\nAgreement;\n\n     NOW, THEREFORE, in consideration of the promises set forth in this\nAgreement and to induce Secured Party to make the Loan, Pledgor hereby agrees\nwith Secured Party as follows:\n\n     1.  STOCK PLEDGE PROVISIONS.\n         ----------------------- \n\n          1.1  Pledge.  Pledgor hereby pledges to Secured Party, and grants to\n               ------                                                         \nSecured Party a security interest in, all of Pledgor's, right, title, and\ninterest in and to the following (the \"Pledged Collateral\"): (a) all of the\nPledged Shares; (b) the certificates, if any, representing the Pledged Shares;\nand (c) all dividends, cash, instruments and other property or proceeds, from\ntime to time received, receivable or otherwise distributed in respect of or in\nexchange for any or all of the Pledged Shares.\n\n \n          1.2  Security Interest.  This Agreement secures, and the Pledged \n               -----------------     \nCollateral is security for, the full and prompt payment by Pledgor when due\n(whether at stated maturity, by acceleration or otherwise) of, and the\nperformance by Pledgor of, all of Pledgor's current and future obligations under\nthis Agreement and each of the Loan Documents to which Pledgor is a party,\nincluding without limitation principal, interest, fees, and expenses (including\nany interest, fees, or expenses that, but for the provisions of the Bankruptcy\ncode, would have accrued). The security interest in the Pledged Collateral\ncreated by this Agreement will continue, and the provisions of this Agreement\nwill remain in full force and effect, until the termination of this Agreement\npursuant to Section 1.7.\n\n          1.3  Representations and Warranties.  Pledgor hereby represents and\n               ------------------------------                                \nwarrants to the Secured Party that, as of the date each of the Pledged Shares is\nissued: (a) Pledgor is the legal and beneficial owner of the Pledged Collateral\nfree and clear of any lien, and (b) Pledgor has the right to pledge and grant to\nthe Secured Party a security interest in the Pledged Collateral.\n\n          1.4  Transfers and Other Liens.  Pledgor agrees that Pledgor will not:\n               -------------------------                                        \n(a) sell or otherwise dispose of, or grant any option or warrant with respect\nto, any of the Pledged Collateral except as permitted by the Loan Agreement, or\n(b) create or permit to exist any lien upon or with respect to any of the\nPledged Collateral, except for the lien created pursuant to this Agreement.\n\n          1.5  Further Assurances.  Pledgor agrees to promptly execute and \n               ------------------        \ndeliver all further instruments and documents, and take all further action that\nmay be necessary or desirable, or that Secured Party may reasonably request, in\norder to perfect and protect the lien granted or purported to be granted hereby\nor to enable Secured Party to exercise and enforce its rights and remedies with\nrespect to any Pledged Collateral. Pledgor agrees to defend the title to the\nPledged Collateral and Secured Party's lien on the Pledged Collateral against\nthe claim of any other person and to maintain and preserve such lien until\nindefeasible payment in full of all obligations.\n\n          1.6  Secured Party May Perform.  If Pledgor fails to perform any\n               -------------------------                                  \nagreement contained in this Agreement, Secured Party may itself perform, or\ncause performance of such agreement, and the expenses of Secured Party incurred\nin connection therewith shall be payable by Pledgor under Section 3.1 and\nconstitute obligations secured by this Agreement.\n\n          1.7  Termination of Security Interest.  This Agreement, and the\n               --------------------------------                          \nsecurity interests created or granted by this Agreement, shall automatically\nterminate and be released on the date at which the Loan has been fully and\nfinally paid in cash (or forgiven by Secured Party in accordance with the Loan\nAgreement).  Upon any release of the security interest created by this Agreement\nin any of the Pledged Collateral pursuant to this Section 1.7, Secured Party\n(without recourse upon, or any representation or warranty whatsoever by, Secured\nParty) shall promptly:\n\n            (a) return, transfer and deliver to Pledgor all certificates,\n  instruments and other property held by Secured Party pursuant to this\n  Agreement representing or \n\n                                      -2-\n\n \n  evidencing such Pledged Collateral as shall not have been sold or otherwise\n  applied pursuant to the terms of this Agreement, all without recourse upon, or\n  representation or warranty whatsoever by, Secured Party, except that the same\n  shall be free and clear of any claims, liens or encumbrances created by or in\n  respect of Secured Party, and at the cost and expense of Pledgor, and\n\n            (b)  execute and deliver to Pledgor such instruments as may be\n  reasonably requested by Pledgor acknowledging the release of such security\n  interest with respect to such Pledged Collateral.\n\n\n     2.  DELIVERY AND POSSESSION OF PLEDGED COLLATERAL.\n         --------------------------------------------- \n\n          2.1  Delivery of Pledged Collateral.  All certificates or instruments,\n               ------------------------------                                   \nif any, representing or evidencing the Pledged Collateral shall be issued to and\nheld by or on behalf of Secured Party pursuant to this Agreement and shall be in\nsuitable form for transfer by delivery, or shall be accompanied by duly executed\ninstruments of transfer or assignment in blank, all in form and substance\nsatisfactory to Secured Party.\n\n          2.2  Rights to Vote, Receive Dividends from and Sell (No Default).  \n               ------------------------------------------------------------ \nAs long as no event of default shall have occurred under the Loan Agreement and\nbe continuing:\n\n               (a) Pledgor shall be entitled to exercise any and all voting and\n  other consensual rights pertaining to the Pledged Collateral or any part\n  thereof for any purpose not inconsistent with the terms of this Agreement or\n  any other Loan Documents;\n\n               (b) Pledgor shall be entitled to receive and retain (subject to\n  any lien thereon in favor of Secured Party) any and all dividends or\n  distributions paid in respect of the Pledged Collateral, other than any and\n  all:\n\n                   (i)    dividends paid or payable other than in cash in\n     respect of, and instruments and other property received receivable or\n     otherwise distributed in respect of, or in exchange for, any Pledged\n     Collateral;\n\n                    (ii)  dividends and other distributions paid or payable in\n     cash in respect of any Pledged Shares in connection with a partial or total\n     liquidation or dissolution or in connection with a reduction of capital,\n     capital surplus or paid-in-surplus; and\n\n                    (iii) cash paid, payable or otherwise distributed in\n     redemption of, or in exchange for, any Pledged Collateral;\n\nall of which shall be forthwith delivered to Secured Party;\n\n                                      -3-\n\n \n            (c) Secured Party shall execute and deliver (or cause to be executed\n  and delivered) to Pledgor all such proxies and other instruments as Pledgor\n  may reasonably request for the purpose of enabling Pledgor to exercise the\n  voting and other rights which it is entitled to exercise pursuant to Section\n  2.2(a) and to receive the dividends or distributions which it is authorized to\n  receive and retain pursuant to Section 2.2(b); and\n\n            (d) Pledgor shall have the power to require Secured Party to sell\n  any or all of the Pledged Shares in an arms length transaction through a\n  securities brokerage firm, provided that such sale complies with and does not\n  violate any applicable law, and further provided that Pledgor shall pay fifty\n  percent (50%) of the net before tax proceeds from any such sale directly to\n  Secured Party to pay down the Loan in accordance with the Loan Agreement.\n\n          2.3  Adjustments.  Secured Party shall have the right at any time to\n               -----------                                                    \nexchange certificates representing or evidencing any of the Pledged Collateral\nfor certificates of smaller or larger denominations.\n\n          2.4  Reasonable Care.  Secured Party shall be deemed to have exercised\n               ---------------                                                  \nreasonable care in the custody and preservation of the Pledged Collateral in its\npossession if the Pledged Collateral is accorded treatment substantially equal\nto that which Secured Party accords its own property, it being understood that\nSecured Party shall not have any responsibility for: (a) ascertaining or taking\naction with respect to calls, conversions, exchanges, maturities, tenders or\nother matters relative to any Pledged Collateral, whether or not Secured Party\nhas or is deemed to have knowledge of any such matter, or (b) taking any\nnecessary steps to preserve rights against any person with respect to any\nPledged Collateral.\n\n     3.   ADDITIONAL PROVISIONS UPON DEFAULT.\n          ---------------------------------- \n\n          3.1  Remedies Upon Default.  The rights and remedies granted to\n               ---------------------                                     \nSecured Party by this Article 3 will be in addition to all the rights, powers\nand remedies of Secured Party under the Loan Documents.  All such rights and\nremedies will be cumulative and not exclusive of any other rights or remedies\nprovided by law or otherwise.  If any event of default under the Loan Agreement\nshall have occurred and be continuing:\n\n            (a) Secured Party may exercise in respect of the Pledged Collateral,\n  in addition to other rights and remedies provided for in this Agreement or\n  otherwise available to it, all the rights and remedies of a secured party\n  after default under the California Commercial Code or any other applicable law\n  in effect in the State of California at that time, and Secured Party may also,\n  without notice except as specified below, sell the Pledged Collateral or any\n  part thereof in one or more parcels at public or private sale, at any\n  exchange, broker's board or at any office of Secured Party or elsewhere, for\n  cash, on credit or for future delivery, and upon such other terms as Secured\n  Party may deem commercially reasonable.  Pledgor agrees that, to the extent\n  notice of sale shall be required by law, at least ten days' notice to Pledgor\n  of the time and place of any public sale or the time after which any private\n  sale is to be made shall constitute reasonable notification.  Secured Party\n  shall not be obligated to make any sale \n\n                                      -4-\n\n \n  of Pledged Collateral regardless of notice of sale having been given. Secured\n  Party may adjourn any public or private sale from time to time by announcement\n  at the time and place fixed therefor, and such sale may, without further\n  notice, be made at the time and place to which it was so adjourned. Pledgor\n  hereby waives any claims against Secured Party arising by reason of the fact\n  that the price at which any Pledged Collateral may have been sold at such a\n  private sale was less than the price which might have been obtained at a\n  public sale, even if Secured Party accepts the first offer received and does\n  not officer such Pledged Collateral to more than one offeree. With respect to\n  Pledged Collateral consisting of securities registered under the Securities\n  Act of 1933, as amended (the \"Securities Act\"), Secured Party will comply with\n  applicable securities laws in connection with any foreclosure sale.\n\n               (b) Pledgor recognizes that by reason of certain prohibitions\n  contained in the Securities Act and applicable state securities laws, Secured\n  Party may be compelled, with respect to any sale of all or any part of the\n  Pledged Collateral, to limit purchasers to those which will agree, among other\n  things, to acquire such securities for their own account, for investment, and\n  not with a view to the distribution or resale.  Pledgor acknowledges and\n  agrees that any such sale may result in prices and other terms less favorable\n  to the seller than if such sale were a public sale without such restrictions\n  and, notwithstanding such circumstances, agrees that any such sale shall be\n  deemed to have been made in a commercially reasonable manner.  Secured Party\n  shall be under no obligation to delay the sale of any of the Pledged\n  Collateral for the period of time necessary to permit Pledgor to register such\n  securities for public sale under the Securities Act, or under applicable state\n  securities laws, even if Pledgor would agree to do so.\n\n               (c) In the event of a sale of Pledged Collateral in accordance\n  with the provisions of this Section 3.1, notwithstanding anything to the\n  contrary contained in Section 2.2(d) or elsewhere in this Agreement, all of\n  the net before tax proceeds from any such sale shall be applied by Secured\n  Party, or paid directly to Secured Party, to pay down the Loan in accordance\n  with the Loan Agreement.\n\n          3.2  Rights in Pledged Collateral Upon Default.  Upon the occurrence\n               -----------------------------------------                      \nand during the continuance of an event of default under the Loan Agreement:\n\n               (a) upon notice by Secured Party to Pledgor, all rights of\n  Pledgor to exercise the voting and other consensual rights which it would\n  otherwise be entitled to exercise pursuant to Section 2.2(a) shall cease, and\n  all such rights shall thereupon become vested in Secured Party who shall\n  thereupon have the sole right to exercise such voting and other consensual\n  rights;\n\n               (b) all rights of Pledgor to receive the dividends or\n  distributions which it would otherwise be authorized to receive and retain\n  pursuant to Section 2.2(b) shall cease, and all such rights shall thereupon\n  become vested in Secured Party who shall thereupon have the sole right to\n  receive and hold as Pledged Collateral such dividends or distributions;\n\n                                      -5-\n\n \n               (c) All dividends or distributions which are received by Pledgor\n  contrary to the provisions of Section 3.2(b) shall be received in trust for\n  the benefit of Secured Party, shall be segregated from other property or funds\n  of Pledgor and shall be forthwith delivered to Secured Party;\n\n               (d) Pledgor shall, if necessary to permit Secured Party to\n  exercise the voting and other rights which it may be entitled to exercise\n  pursuant to Section 2.2(a) and to receive all dividends and distributions\n  which it may be entitled to receive under Section 2.2(b), execute and deliver\n  to Secured Party, from time to time and upon written notice of Secured Party,\n  appropriate proxies and other instruments as Secured Party may reasonably\n  request; and\n\n               (e) Secured Party shall have the right to the extent permitted\n  under any applicable law, at any time in its discretion and without notice to\n  Pledgor, to transfer to or to register in its name or in the name of any of\n  its nominees any or all of the Pledged Collateral.\n\nThe foregoing shall not in any way limit Secured Party's power and authority\ngranted pursuant to Section 3.3.\n\n          3.3  Secured Party Appointed Attorney-in-Fact and Proxy.  Subject to\n               --------------------------------------------------             \nSection 3.1, Pledgor hereby irrevocably constitutes and appoints Secured Party\nand any officer or agent of Secured Party, effective upon the occurrence and\nduring the continuance of an event of default under the Loan Agreement, with\nfull power of substitution, as its true and lawful attorney-in-fact and proxy\nwith full irrevocable power and authority in the place and stead of Pledgor and\nin the name of Pledgor or in its own name, from time to time in Secured Party's\ndiscretion, for the purpose of carrying out the terms of this Agreement, to take\nany and all appropriate action and to execute and deliver any and all documents\nand instruments which Secured Party may deem necessary or advisable to\naccomplish the purposes of this Agreement. Without limiting the generality of\nthe foregoing, Pledgor hereby gives Secured Party the power and right, on behalf\nof Pledgor, upon the occurrence and during the continuance of an event of\ndefault under the Loan Agreement, to receive, endorse and collect all\ninstruments made payable to Pledgor representing any dividend or distribution in\nrespect of the Pledged Collateral or any part thereof, to give full discharge\nfor the same, and to vote or grant any consent in respect of the Pledged Shares\nauthorized by Section 3.1.  Pledgor hereby ratifies, to the extent permitted by\nlaw, all that any said attorney shall lawfully do or cause to be done by virtue\nhereof.  This power, being coupled with an interest, is irrevocable until, and\nshall automatically terminate upon, the termination of this Agreement pursuant\nto Section 1.7.\n\n\n     4.   GENERAL PROVISIONS.\n          ------------------ \n\n          4.1  Successors and Assigns.  The terms and conditions of this\n               ----------------------                                   \nAgreement will be binding upon Pledgor, its successors and assigns, and inure,\ntogether with the rights and remedies of Secured Party hereunder, to the benefit\nof and be enforceable by Secured Party and its successors, transferees and\nassigns.\n\n                                      -6-\n\n \n          4.2  Modification; Waiver.  This Agreement may be modified or \n               --------------------             \namended only by a writing signed by both parties hereto. No waiver or consent\nwith respect to this Agreement will be binding unless it is set forth in writing\nand signed by the party against whom such waiver is asserted. No course of\ndealing between Borrower and Secured Party will operate as a waiver or\nmodification of any party's rights under this Agreement or any other Loan\nDocument. No delay or failure on the part of either party in exercising any\nright or remedy under this Agreement or any other Loan Document will operate as\na waiver of such right or any other right. A waiver given on one occasion will\nnot be construed as a bar to, or as a waiver of, any right or remedy on any\nfuture occasion.\n\n          4.3  Severability.  The invalidity or unenforceability of any term or\n               ------------                                                    \nprovision of this Agreement will not affect the validity or enforceability of\nany other term or provision.\n\n          4.4  Governing Law.  This Agreement will be exclusively governed by \n               -------------       \nand construed in accordance with the internal laws of the State of California,\nas applied to agreements entered into solely between residents of and to be\nperformed entirely in the State of California, without reference to that body of\nlaw relating to conflicts of law or choice of law.\n\n          4.5  Jurisdiction.  The parties agree that any controversy or claim\n               ------------                                                  \narising out of or relating to this Agreement shall be tried and litigated\nexclusively in a state or federal court with jurisdiction located in San Mateo\nCounty in the State of California.\n\n          4.6  Waiver of Jury Trial.  Pledgor and Secured Party waive any right\n               --------------------     \nthey may have to a trial by jury in respect of any litigation based on, or\narising out of, under or in connection with, this Agreement or any other Loan\nDocument, or any course of conduct, course of dealing, verbal or written\nstatement or other action of any loan party or any secured party.\n\n          4.7  Section Titles.  The Section titles contained in this Agreement\n               --------------          \nare and will be without substantive meaning or content of any kind and are not\npart of this Agreement.\n\n          4.8  Counterparts.  This Agreement may be executed in one or two\n               ------------                                               \ncounterparts, each of which will be deemed an original, but together will\nconstitute one and the same instrument.\n\n\n           [The remainder of this page was left blank intentionally.]\n\n                                      -7-\n\n \n     IN WITNESS WHEREOF, Pledgor has caused this Agreement to be duly executed\nand delivered by its duly authorized officer on the date first above written.\n\n\n                              PLEDGOR:\n\n                \n                              \/s\/ Mark A. McEachen\n                              ______________________________\n                              \n                              Mark A. McEachen\n\n\n\n                              \n                              ______________________________\n                              ____________\n\n\n\nACCEPTED AND ACKNOWLEDGED:\n\nSECURED PARTY\n\nAt Home Corporation\n\n\n\/s\/ George Bell\n____________________________ \nGeorge Bell, Chairman and\nChief Executive Officer\n\n                                      \n\n                                      -8-\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6782],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9539,9544],"class_list":["post-40076","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-at-home-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40076","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40076"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40076"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40076"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40076"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}