Preview
Gregg D. Zucker, Cal. Bar No. 166692
gregg@foundationlaw.com
FOUNDATION LAW GROUP LLP ELECTRONICALLY FILED
2049 Century Park East, Suite 2460 Superior Court of California
County of Santa Barbara
Los Angeles, California 90067 Darrel E. Parker, Executive Officer
Telephone: 310.979.7561 6/12/2024 1:55 PM
By: Sarah Sisto , Deputy
Attorneys for Defendants
WILLIAM W. NICHOLSON AND
SANDRA SHINN NICHOLSON
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA
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ANACAPA DIVISION
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MARK JACOBS and TRISHA BLAKE, CASE NO. 20CV03026
13 as Co-Trustees of the Trust of Irwin L.
Jacobs; MARK JACOBS and TRISHA DECLARATION OF WILLIAM W.
14 NICHOLSON IN SUPPORT OF
BLAKE, as Personal Representatives of
15 the Estate of Irwin L. Jacobs; and MARK DEFENDANTS’ MOTION FOR
JACOBS and TRISHA BLAKE as the SUMMARY ADJUDICATION
16 Personal Representatives of the Estate of
Alexandra Jacobs, Filed concurrently with Notice of Motion
17 and Motion for Summary Adjudication,
18 Plaintiff, Memorandum of Points and Authorities,
Separate Statement of Undisputed Material
19 Vv. Facts, and Request for Judicial Notice
20 WILLIAM W. NICHOLSON, an DATE: August 12, 2024
individual; SANDRA SHINN TIME: 10:00 AM
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NICHOLSON, an individual; and DOES DEPT: 5
22 ONE through TWENTY, inclusive,
Trial Call: September 9, 2024
23 Defendants. Action Filed: September 21, 2020
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DECLARATION OF WILLIAM W. NICHOLSON
DECLARATION OF WILLIAM W. NICHOLSON
I, WILLIAM W. NICHOLSON, declare:
1 I am a defendant in this action, am over the age of 18, and the matters set forth
in this declaration are true and correct of my own personal knowledge. If called upon as a
witness, I could and would testify competently to those matters.
2 For many years, my wife, Sandra Shinn Nicholson, and I were friends with
Irwin L. Jacobs (“Jacobs”) and his wife, Alexandra Jacobs. On over a dozen occasions, we
all went out together socially as married couples. In addition, my wife and I visited Jacobs
and Alexandra at the home they jointly lived in together in Minnesota. We also travelled
10 both domestically and internationally as couples. Given our good friendship before, during,
11 and after 2005, I regularly did business with Jacobs without fully documenting some
12 business transactions. Indeed, when I had money, I often loaned it to him with no interest.
13 3 In late 2004 or early 2005, Jacobs contacted me by phone from Minnesota
14 with a business opportunity to invest in Genmar Holdings, Inc. (“Genmar”). He asked me to
15 invest Genmar alongside him. I initially declined because I had invested $2,500,000 in 1992
16 in the company at his prior urging, and in the intervening 13 years, I had not received any
17 return on my investment, and the company appeared to be weak financially. Jacobs,
18 however, continued to ask me to invest a second time in the company. He explained that
19 some of the DeVos family with a sizeable interest in the company were getting concerned
20 about him and his ability to fulfill his promises and that to allay those concerns they wanted
21 me to be involved in the transaction alongside Jacobs. Whether or not the De Vos family
22 actually required my participation, at the time, I had no reason to believe he was not telling
23 the truth. Since then, I have come to suspect that Jacobs simply needed me to participate
24 because he did not have liquid funds to finance his entire intended purchase of the Genmar
25 stock at the time. Regardless of the actual reason, Jacobs explained to me that this
26 transaction was very important to him and that it was very important to include me to get a
27 deal done. He claimed that he had already secured a buyer for the stock at $14/share, nearly
28 double what we would be paying.
-1-
DECLARATION OF WILLIAM W. NICHOLSON
4 This second investment in Genmar (“the Genmar 2 investment’) contemplated
that I would pay a portion of the purchase price by a promissory note (as well as cash)
payable to RDV Genmar Holdings LLC (“RDV Genmar”), which was the entity that sold
Genmar stock to me. I agreed with Jacobs that I would go forward with the Genmar-2
investment, but I expressly predicated any agreement on Jacobs promising to pay all
obligations in connection with the promissory note, including paying in the first instance any
interest. Absent Jacobs’ agreement, I was unwilling to make the Genmar-2 investment.
5 On multiple occasions before July 1, 2005, including in early March 2005,
April 2005, May 2005 and June 2005, and at times thereafter up to 2012, Jacobs orally
10 agreed that he would pay all obligations in connection with the promissory note that was part
11 of the Genmar-2 investment, including interest payments on the note. Consistent with his
12 repeated promises, Jacobs signed multiple documents guarantying my payments.
13 6 Attached as Exhibit A are true and correct copies of the following documents:
14 Jacobs’ Guaranty of the Promissory Note, dated July 1, 2005; the Amendment to Promissory
15 Note and Affirmation of Obligations, dated March 27, 2008 (the “Amendment”); the Second
16 Amendment to Promissory Note and Affirmation of Obligations, dated May 30, 2008 (the
17 “Second Amendment”), and the Third Amendment to Promissory Note and Affirmation of
18 Obligations, dated December 31, 2008 (the “Third Amendment”). Each document was
19 signed by Jacobs, whose signature I am well familiar with having seen his signature scores of
20 times before. I signed the Amendment, the Second Amendment and the Third Amendment,
21 and shortly after their execution, these documents were transmitted back to me from RDV
22 Genmar, signed by an officer of Genmar (Robert Schierbeek) whose signature I am well
23 familiar with having seen his signature about a dozen times before.
24 7 In or about July 1, 2005, and in reliance on Jacobs’ promises to me that he
25 would pay the obligations on the note, I agreed to the Genmar-2 investment, purchasing
26 Genmar stock in exchange for $1,000,000 in cash and a promissory note of $4,250,861.40
27 (the “Genmar Promissory Note”). Attached as Exhibit B is a true and correct copy of the
28 Genmar Promissory Note that I executed. I would not have entered into this transaction
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DECLARATION OF WILLIAM W. NICHOLSON
(including the Genmar Promissory Note) if Jacobs had not promised to me that he would pay
my obligations on the note.
8 From 2005 to 2013, RDV Genmar demanded that I pay the obligations under
the Genmar Promissory Note. Attached as Exhibit C are true and correct copies of certain
payment demands I received and still have in my records.
9 Before the payments were due to RDV Genmar (including the first and second
interest payments and then subsequent obligations due in 2008, 2010, 2011, 2012 and 2013),
I requested that Jacobs make the payments as he had promised and as I had relied upon.
Each time, he explained that he could not make the promised payments or payoff the note
10 and that he was unable to make even his own payments in connection with his purchase of
11 Genmar stock. As a result, we had to extend the note to allow time to payoff the obligations
12 as he continued to promise, multiple times in 2008, 2009, 2010 and 2011, to pay. In reliance
13 on the many promises by Jacobs and our course of dealing, I paid and continued to make
14 payments.
15 10. As a result of Jacobs’ failure to honor his promises to me in connection with
16 my obligations to RDV Genmar, the following are certain interest payments I made on the
17 Genmar Promissory Note between December 2005 and September 2013:
18 v On December 28, 2005, I paid $130,359.75 in interest;
19 v On July 3, 2006, I paid $128,234.32 in interest;
20 v On December 29, 2011, I paid $400,000 in interest (including back interest);
21 On April 6, 2012, I paid $125,000 in interest;
22 On June 30, 2012, I paid $250,000 in interest;
23 On December 21, 2012, I paid $125,000 in interest;
24 On March 31, 2013, I paid $125,000 in interest;
25 On June 27, 2013, I paid $125,000 in interest; and
26 On September 27, 2013, I paid $125,000 in interest.
27 11. None of the payments listed above were offset by other obligations that I may
28 have had to Jacobs at the time, outside those obligations claimed by Plaintiffs in this case.
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DECLARATION OF WILLIAM W. NICHOLSON
12. Attached as Exhibit D are true and correct copies of records of payments at the
time that I still have for interest paid to RDV Genmar and taken against my bank account,
including checks I wrote on the date and documentation of wires against my account.
13. I did not obtain any benefits from the Genmar-2 investment. I did not receive
any actual stock in Genmar. as it was pledged as part of the transaction and as the
note was
not paid off at the time. Attached as Exhibit E is a true and correct
copy of a Pledge
Agreement that I executed and received from RDV Genmar
with Robert Schierbeek’s
signature. As of 2013, Genmar’s stock was worthless as the
company declared bankruptcy.
14, I did not make an affirmative claim against Plaintiffs
for the money owed to
10 me on the Genmar-2 investment (among other thing
s) because I was informed by Plaintiff
11 Mark Jacobs, after his father killed his
wife and shot himself, that there were
about $110
12 million in claims in excess of their
available assets,
13 I declare under penalty of perjury
under the laws of the State of Cali
fornia that the
14 foregoing is true and correct,
15 Executed on June 12, 2024 at Hous
ton, Texas,
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EXHIBIT A
GUARANTY
WHEREAS, RDV Genmar Holdings LLC, a Michigan limited liability company (the
“Lender” has agreed to extend credit pursuant to a Note of even date herewith (the “Loan”) to
William W. Nicholson (“Borrower”);
WHEREAS, the Loan will be evidenced by the Borrower’s promissory note of even date
herewith (the “Note”) payable to the order of the Lender in the principal amount of Four Million
Two Hundred Fifty Thousand Eight Hundred Sixty-One and 40/100 Dollars ($4,250,861.40);
and
WHEREAS, the Lender, as a condition to making the Loan, has required the execution of
this Guaranty:
NOW, THEREFORE, the undersigned (the “Guarantor”), in consideration of the
premises and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, hereby agree as follows:
1 The Guarantor hereby absolutely and unconditionally guarantees to the Lender the
full and prompt payment when due, whether at maturity or earlier by reason of acceleration or
otherwise, of the repayment of all funds payable under and/or evidenced by the Note (and all
interest thereon) and any extensions or renewals thereof and substitutions therefor (all of said
sums being hereinafter called the “Indebtedness”); and the Guarantor agrees to pay all costs,
expenses and attorneys’ fees paid or incurred by the Lender in endeavoring to collect the
Indebtedness and in enforcing this Guaranty.
2 No act or thing need occur to establish the liability of the Guarantor hereunder,
and with the exception of full payment, no act or thing (including, but not limited to, a discharge
in bankruptcy of the Indebtedness, and/or the running of the statute of limitations) relating to the
Indebtedness which but for this provision could act as a release of the liabilities of the Guarantor
hereunder, shall in any way exonerate the Guarantor, or affect, impair, reduce or release this
Guaranty and the liability of the Guarantor hereunder; and this shall be a continuing, absolute,
unconditional and joint and several guaranty and shall be in force and be binding upon the
Guarantor until the Indebtedness is fully paid.
3 The liability of the Guarantor hereunder shall not be affected or impaired in any
way by any of the following acts or things (which the Lender is hereby expressly authorized to
do, omit or suffer from time to time without notice to or consent of anyone): (i) any acceptance
of collateral security, guarantors, accommodation parties or sureties for any or all Indebtedness;
(ii) any extension or renewal of any Indebtedness (whether or not for longer than the original
period) or any modification of the interest rate, maturity or other terms of any Indebtedness; (iii)
any waiver or indulgence granted to the Borrower, any delay or lack of diligence in the
enforcement of the Note or any other Indebtedness, or any failure to institute proceedings, file a
claim, give any required notices or otherwise protect any Indebtedness; (iv) any full or partial
release of, compromise or settlement with, or agreement not to sue, the Borrower or any other
guarantor or other person liable on any Indebtedness or the death of any other guarantor or
obligor on any Indebtedness; (v) any release, surrender, cancellation or other discharge of any
Indebtedness or the acceptance of any instrument in renewal or substitution for any instrument
evidencing Indebtedness; (vi) any failure to obtain collateral security (including rights of setoff)
for any Indebtedness, or to see to the proper or sufficient creation and perfection thereof, or to
establish the priority thereof, or to preserve, protect, insure, care for, exercise or enforce any
collateral security for any of the Indebtedness; (vii) any modification, alteration, substitution,
exchange, surrender, cancellation, termination, release or other change, impairment, limitation,
loss or discharge of any collateral security for any of the Indebtedness; (viii) any assignment,
sale, pledge or other transfer of any of the Indebtedness; or (ix) any manner, order or method of
application of any payments or credits on any Indebtedness. The Guarantor waives any and all
defenses and discharges available to a surety, guarantor, or accommodation co-obligor,
dependent on their character as such.
4 The Guarantor waives any and all defenses, claims, and discharges of the
Borrower, or any other obligor, pertaining to the Indebtedness, except the defense of discharge
by payment in full. Without limiting the generality of the foregoing, the Guarantor will not
assert against the Lender any defense of waiver, release, discharge in bankruptcy, res judicata,
statute of frauds, or anti-deficiency statute, which may be available to the Borrower in respect of
the Indebtedness, and the Guarantor expressly agrees that he shall be and remain liable for any
deficiency remaining after the disposition of any collateral securing any Indebtedness,
notwithstanding provisions of applicable law that may prevent the Lender from enforcing such
deficiency against the Borrower. The liability of the Guarantor shall not be affected or impaired
by any voluntary or involuntary liquidation, dissolution, sale or other disposition of all or
substantially all the assets, marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or
readjustment of, or other similar event or proceeding affecting, the Borrower or any of its assets.
The Guarantor will not assert against the Lender any claim or defense available to the Guarantor
against the Borrower.
5 The Guarantor also hereby waives: (i) presentment, demand for payment, notice
of dishonor or nonpayment, and protest of the Indebtedness; (ii) notice of the acceptance hereof
by the Lender and of the creation and existence of all Indebtedness; and (iii) notice of any
amendment to or modification of any of the terms and provisions of the Note or any other
agreement evidencing any Indebtedness. The Lender shall not be required to first resort for
payment of the indebtedness to the Borrower or other persons or corporations, their properties or
estates, or to any collateral, property, liens or other rights or remedies whatsoever.
6 Whenever, at any time or from time to time, the Guarantor shall make any
payment to the Lender hereunder, the Guarantor shall notify the Lender in writing that such
payment is made under this Guaranty for such purpose. If any payment applied by the Lender to
the Indebtedness is thereafter set aside, recovered, rescinded or required to be returned for any
reason (including, without limitation, the bankruptcy, insolvency or reorganization of the
Borrower or any other obligor), the Indebtedness to which such payment was applied shall for
the purposes of this Guaranty be deemed to have continued in existence, notwithstanding such
application, and this Guaranty shall be enforceable as to such Indebtedness as fully as if such
application had never been made.
1
No payment by the Guarantor pursuant to any provision hereof shall entitle the
Guarantor, by subrogation to the rights of the Lender or otherwise, to any payment by the
Borrower or out of the property of the Borrower until all of the Indebtedness (including interest)
2
and all costs, expenses and attorneys’ fees paid or incurred by the Lender in endeavoring to
collect the Indebtedness and enforcing this Guaranty have been fully paid. The Guarantor will
not exercise or enforce any right or contribution, reimbursement, recourse or subrogation
available to the Guarantor as to any Indebtedness, or against any person liable therefor, or as to
any collateral security therefor, unless and until all such Indebtedness shall have been fully paid
and discharged.
8 This Guaranty shall be binding upon the heirs, legal representatives, successors
and assigns of the Guarantor, and shall inure to the benefit of the successors and assigns of the
Lender and the laws of the State of Minnesota shall govern matters pertaining to this Guaranty
and the enforceability thereof.
IN WITNESS WHEREOF, the Guarantors have executed this Guaranty as of this 1 day
of July, 2005.
GUARANT' fe J
4
Irwin Jacobs
£ 2~ Co
402301.1
AMENDMENT TO PROMISSORY NOTE AND AFFIRMATION OF OBLIGATIONS
THIS AGREEMENT made and entered into as of this X day of March, 2008 among
WILLIAM W. NICHOLSON (the “Payor”), RDV GENMAR HOLDINGS LLC (the “Payee”)
and IRWIN L. JACOBS (the “Guarantor”).
Recitals
The Payor is indebted to the Payee pursuant to a Promissory Note dated July 1, 2005 in
the Principal amount of $4,250,861.40 having a Maturity Date, as defined therein, of July 1,
2008, secured by a Pledge Agreement between Payor and Payee dated as of July 1, 2005 (the
“Pledge Agreement”) and further secured by the Guaranty of Irwin L. Jacobs in favor of Payee
dated as of July 1, 2005 (the “Guaranty”)
The Payor and Payee wish to amend the Note.
NOW THEREFORE, the parties hereto promise and agree as follows:
1 The Maturity Date of the Note, as defined therein, is hereby extended to March
31, 2009.
2 The sentence of the Note that presently reads: “From and after the occurrence of
an Event of Default and during the continuance thereof, interest on the unpaid principal balance
shall accrue at the rate of nine percent (9%) per annum (the “Default Rate”)” is hereby amended
to read as follows: “If an Event of Default shal! occur, interest on the unpaid principal balance of
the note shall accrue at nine percent (9%) per annum (the “Default Rate”) for the period
commencing on July 1, 2008 and ending on the date that the Event of Default shall be cured or
waived in writing by the holder hereof.”
3. Except as amended pursuant to Sections 1 and 2, above, the Note shall remain in
full force and effect as written.
4 Payor hereby affirms his obligations pursuant to the Note as hereby amended and
warrants and represents that he has no defenses thereto in law or in equity. Payor hereby also
affirms that the Pledge Agreement remains in full force and effect and secures the Note as hereby
amended and warrants and represents that he has no defenses thereto in law or in equity.
5 Guarantor hereby consents to the amendments to the Note as set forth in Sections
1 and 2, above, and affirms his obligations pursuant to the Guaranty and affirms that it extends to
the Note as so amended. Guarantor further hereby warrants and represents that he has no
defenses to the Guaranty in law or in equity.
6 This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties may execute this Agreement
by signing any such counterpart.
IN WITNESS WHEREOPF, the parties have executed this Agreement as of the day and
year first above written. ‘
WY
William W. Nicholson
RDV Genmar LLC
By: RDV Corporation, its Manager
By
Robert H. Schi:
Irwin L. Jacobs
6 This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties may execute this Agreement
by signing any such counterpart
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
William W. Nicholson
RDV Genmar LLC
By: RDV Co: poration, its Manager
By: AZ Ge
Rob Treasurer
~>
Date: December 27, 2011 4 PM MST
To: "Geary, Brendan (RDV Corp - Investment Manageme nt)”
c>
Subject: RE: Nicholson
uct Lons*
The funds can be sent to RDV Genmar Holdings, LLC. Below are the wire instr
The Northern Trust Company
Chicago, IL
ABA #071000152
Credit to: RDV Genmar Holdings, LLC
Account #2702622
amount expected, I can have the bank watch out for it. Let me know
If you know the exact else.
if you need anyth ing
‘Thanks,
Scott
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EXHIBIT E
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*
PLEDGE AGREEMENT
THIS SECURITY AND PLEDGE AGREEMENT, effective as of the 1" day of July, 2005
by William W. Nicholson (the “Pledgor”), in favor of RDV Genmar Holdings LLC, a Michigan
limited liability company, having an address of 126 Ottawa Avenue N.W., Suite 500, Grand Rapids,
Michigan 49503 (the “Pledgee”)
‘WITNESSETH
WHEREAS, Irwin L. Jacobs and the Pledgee have entered into that certain Stock Purchase
Agreement dated as of December 10, 2004, as amended (the “Stock Purchase Agreement”) which
has been assigned in part to Pledgor and pursuant to which Pledgor
has on the date hereof purchased
common stock of Genmar Holdings, Inc. (the “Company”) with a portion of the purchase price
being paid pursuant to that certain Promissory Note (the “Note”) of even date herewith payable to the
order of the Pledgee in the original principal amount of $4,250,861.40, and the Pledgor has agreed in
consideration thereof and to secure the payment of the Note and the performance of all other
obligations of the Pledgor under the Note (collectively, the “Obligations”) to pledge the 607,036
shares of the stock in the Company acquired by Pledgor pursuantto the Stock Purchase Agreement
(the “Shares”);
WHEREAS, the Pledgor and the Pledgee desire to enter into this Agreement to provide for
such pledge, all upon the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants
herein contained and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1 Pledge. Pledgor hereby pledges and grants a first priority security interest to the
Pledgee (the “Security Interest”) in and to all of the Shares, together with all distributions or
allocations of distributable cash in respect thereof (collectively referred to as the “Pledged
Interest”). Pledgor will, upon receipt, immediately deliverto the Pledgee and pledge as additions to
the Pledged Interest all securities or other property, distributed on account of any of the Pledged
Interest such as stock dividends and securities resulting from stock splits, reorganizations and
recapitalizations and mergers. The Pledgor grants the aforementioned Security Interest to secure the
full and faithful payment and performance by the Pledgor of the Obligations
23 fection0’ The Security Interest shall be perfected by
delivering the Shares to Pledgee, along with the execution of a blank stock power. In addition, at the
request of the Pledgee, Pledgor hereby agrees to take all reasonable action to further perfect the
Security Interest, including the execution of an assignment separate from certificate and the filing of
any necessary Uniform Commercial Code statements and, if the Shares are held in the name of an
individual, the recitation of appropriate representations regarding the pledge of the securities and the
consideration for such pledge.
ovenants, entations and V arrantiesof the ledgo
epres eds . As further security.
for the full and faithful performance of the Obligations, the Pledgor hereby covenants, represents and
warrants to the Pledgee as follows:
(a) Other than any defects in title existing because of the condition of title
conveyed to Pledgor by Pledgee, the Pledgor has good and marketable title to the Pledged
Interest, free and clear of all claims, liens or encumbrances and Pledgor shall not hereafter, so
long as this Agreement remains in effect, grant a security interest or other lien or
encumbrance in the Pledged Interest in favor of any other person or entity.
) The Pledgor’s right to the Pledged Interest is not subjectto any defense, right
of set-off or counterclaim and the Pledgor will defend Pledgee against all claims or demands
of all persons other than Pledgee. No financing statement covering all or any of the Pledged
Interest is on file in any public office.
© The Pledgor hereby acknowledges that this Agreement and the pledge and
Security Interest granted hereby is supported by good and valuable consideration and is
binding upon the Pledgor.
@) The Pledgor has the power and authority to execute this Agreement and to
grant the Security Interest in the Pledged Interest Pledgor has granted hereunder.
© The Pledgor will at any time or times hereafter execute and deliver such
financing statements or other documents and instruments as Pledgee may request to establish,
maintain and perfect the Security Interest in the Pledged Interest.
4 Term.
@ This Agreement shall remain in full force and effect until the payment in full
ofall Obligations. Upon full performance of all of the Obligations, Pledgee shall transfer to
Pledgor all of the remaining stock constituting the Pledged Interest and deliver any stock
powers or assignments separate from certificate for cancellation and all rights received by
Pledgee under this Agreement shall terminate.
() Upon any partial prepayment of the principal of the Note, there shall be
released from the Pledged Interest that number of Shares equal to the total dollar amount of
such prepayment of principal of the Note divided by $7.00. Pledgee shall arrange with the
Company to have sufficient certificates so the requisite number of shares to be transferred to
Pledgor hereunder can be so transferred.
5Amendment. This Agreement may not be amended or modified, nor may any of its
terms, including without limitation, terms affecting the Obligations, be modified or waived, except
with the Pledgee’s written consent.
6. . Upon the occurrence of an Event of Default as defined in the
Note, including but not limited to the failure to pay principal or any installment of interest when due,
402293.1
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the Pledgee shall have the following remedies which may be exercised from time to time in
Pledgee’s sole discretion:
@) Pledgee shall have the exclusive right to vote the shares and Pledgor shall
deliver to Pledgee from time to time executed proxies conferring such right upon Pledgor;
) The Pledgee may, at its option, and in the name of the Pledgor or otherwise,
collect and dispose of all or any part of the Pledged Interest at public or private sale or
otherwise, to the extent permitted under the terms of the Uniform Commercial Code as in
effect in the State of Minnesota and/or other applicable law. Any requirement of reasonable
notice shall be met if the Pledgee sends such notice to Pledgor, by registered or certified
mail, at least five (5) business days prior to the date of sale, disposition or other event giving
rise to the required notice. THE PLEDGEE MAY BE THE PURCHASER AT ANY
SUCH SALE. The proceeds of any sale shall first be applied by Pledgee to pay, or reimburse
it for, the expenses of sale, then to all of the Obligations and any excess shall be paid to the
Pledgor. In the event the proceeds of any sale are insufficient to pay the Obligations in full
Pledgor shall remain liable for the amount of any deficiency to the extent permitted by
applicable law. Pledgor agrees and acknowledges that because of applicable securities laws,
the Pledgee may not be able to effect a public sale of the Shares and sales at a private sale
maybe on terms less favorable than if such securities were sold at a public sale and may be at
a price less favorable than a public sale. Pledgor agrees that all such private sales made
under the foregoing circumstances shall be deemed to have been made in a commercially
reasonable manner.
©) The Pledgee may exercise or enforce any and all other rights and remedies
available to the Pledgee by law or agreement against the Pledgor.
7 Wai No delay or failure by the Pledgee and the exercise of any right or remedy
shall constitute a waiver thereof and no single or partial exercise by the Pledgee of any right or
remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy.
8. Notices. All notices, requests, demands and other communications hereunder shall be
deemed to have been given when personally delivered or deposited in the United States mail, mailed
first class, registered or certified, postage prepaid, addressed to the last known address of the
respective party.
8. NV . This Agreement shall be governed by and construed in accordance
with the laws of the State of Minnesota without regard to the choice of law principles hereof.
10. Jurisdiction. Pledgor hereby submits to the jurisdiction of any Minnesota state court
or federal court over any action or proceeding arising out of or relating to this Agreement. Pledgor
irrevocably waives, to the fullest extent, that he may effectively do so the defense of an inconvenient
form of maintenance of such action or proceeding. Pledgor agrees that judgment filed by appeal, or
expiration of time to appeal without an appeal being taken, in any such action or proceeding shall be
conclusive and may be enforced jurisdiction by suit on the judgment or any other manner provided
402293.1 3
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by law. Nothing in this paragraph shall affect the right of the Pledgee to serve legal process in any
other manner permitted by law against Pledgor or his property and the courts of any other
jurisdiction.
11. Taxes, The Pledgor shall be responsible for the payment of all state and federal taxes
payable as the result of any sale or disposition of any and all of the Pledged Interest.
12. © Binding Effect. This Agreement shall be binding upon and inureto the parties hereto
and their assigns and successors.
13. Severability. In the event any provision hereof is determined to be unenforceable or
invalid, such provision or such part thereof which may be unenforceable shall be deemed severed
from this Agreement and the remaining provisions carried out with the same and effect as if the
severed provision or part thereof had not been made a part hereof.
14. Counterparts. This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one agreement, and any of the parties may execute this
Agreement by signing any such counterpart.
IN WITNESS WHEREOF, the Pledgor and the Pledgee have executed and delivered this
Agreement as of the day and year first above written.
PLEDGEE:
RDV Genmar Holdings LLC
By: RDY. ration, it
By:
Robert H. Schi: k, Treasurer
PLEDGOR:
/ Al
illiam W. Nicholson
402293.1
PROOF OF SERVICE
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and
not a party to the within action; my business address is: 2049 Century Park East, Suite 2460,
Los Angeles, CA 90067; my email is gregg@foundationlaw.com.
On June 12, 2024, I caused the following documents to be served:
DECLARATION OF WILLIAM NICHOLSON IN SUPPORT OF DEFENDANTS’
MOTION FOR SUMMARY ADJUDICATION
on interested parties in this action by placing the [J original | true copy(ies) thereof in an
envelope directed to:
Craig S. Granet craig.granet@rimonlaw.com
Claire K. Mitchell claire.mitchell@rimonlaw.com
10
Rimon, P.C.
11 200 E. Carrillo St, Suite 201
Santa Barbara, California 93101
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& BY EMAIL: I served the above-referenced document by electronic service, to the
13 email addresses listed above, pursuant to the rules on such service, including CCP
1010.6. To the best of my knowledge, at the time of this transmission, the
14 transmission was delivered without error.
15 BY PERSONAL HAND SERVICE: I caused the foregoing documents to be delivered
to the above addressees by providing to our attorney service for delivery, with
16 instructions to leave them with the attorney(s) personally or with a receptionist or
person having charge of the office. To the extent that there was no person in the
17 office, I directed the attorney service to leave the documents in a conspicuous place in
the office between the hours of 9:00 a.m. and 5:00 p.m.
18
& I declare under penalty of perjury under the laws of the State of California that the
19 above is true and correct.
20
Executed on June 12, 2024 at Los Angeles, California.
21
/s/ Gregg Zucke
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5.
DECLARATION OF WILLIAM W. NICHOLSON
Preview
Gregg D. Zucker, Cal. Bar No. 166692 gregg@foundationlaw.com FOUNDATION LAW GROUP LLP ELECTRONICALLY FILED 2049 Century Park East, Suite 2460 Superior Court of California County of Santa Barbara Los Angeles, California 90067 Darrel E. Parker, Executive Officer Telephone: 310.979.7561 6/12/2024 1:55 PM By: Sarah Sisto , Deputy Attorneys for Defendants WILLIAM W. NICHOLSON AND SANDRA SHINN NICHOLSON SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA 10 ANACAPA DIVISION 11 12 MARK JACOBS and TRISHA BLAKE, CASE NO. 20CV03026 13 as Co-Trustees of the Trust of Irwin L. Jacobs; MARK JACOBS and TRISHA DECLARATION OF WILLIAM W. 14 NICHOLSON IN SUPPORT OF BLAKE, as Personal Representatives of 15 the Estate of Irwin L. Jacobs; and MARK DEFENDANTS’ MOTION FOR JACOBS and TRISHA BLAKE as the SUMMARY ADJUDICATION 16 Personal Representatives of the Estate of Alexandra Jacobs, Filed concurrently with Notice of Motion 17 and Motion for Summary Adjudication, 18 Plaintiff, Memorandum of Points and Authorities, Separate Statement of Undisputed Material 19 Vv. Facts, and Request for Judicial Notice 20 WILLIAM W. NICHOLSON, an DATE: August 12, 2024 individual; SANDRA SHINN TIME: 10:00 AM 21 NICHOLSON, an individual; and DOES DEPT: 5 22 ONE through TWENTY, inclusive, Trial Call: September 9, 2024 23 Defendants. Action Filed: September 21, 2020 24 25 26 27 28 DECLARATION OF WILLIAM W. NICHOLSON DECLARATION OF WILLIAM W. NICHOLSON I, WILLIAM W. NICHOLSON, declare: 1 I am a defendant in this action, am over the age of 18, and the matters set forth in this declaration are true and correct of my own personal knowledge. If called upon as a witness, I could and would testify competently to those matters. 2 For many years, my wife, Sandra Shinn Nicholson, and I were friends with Irwin L. Jacobs (“Jacobs”) and his wife, Alexandra Jacobs. On over a dozen occasions, we all went out together socially as married couples. In addition, my wife and I visited Jacobs and Alexandra at the home they jointly lived in together in Minnesota. We also travelled 10 both domestically and internationally as couples. Given our good friendship before, during, 11 and after 2005, I regularly did business with Jacobs without fully documenting some 12 business transactions. Indeed, when I had money, I often loaned it to him with no interest. 13 3 In late 2004 or early 2005, Jacobs contacted me by phone from Minnesota 14 with a business opportunity to invest in Genmar Holdings, Inc. (“Genmar”). He asked me to 15 invest Genmar alongside him. I initially declined because I had invested $2,500,000 in 1992 16 in the company at his prior urging, and in the intervening 13 years, I had not received any 17 return on my investment, and the company appeared to be weak financially. Jacobs, 18 however, continued to ask me to invest a second time in the company. He explained that 19 some of the DeVos family with a sizeable interest in the company were getting concerned 20 about him and his ability to fulfill his promises and that to allay those concerns they wanted 21 me to be involved in the transaction alongside Jacobs. Whether or not the De Vos family 22 actually required my participation, at the time, I had no reason to believe he was not telling 23 the truth. Since then, I have come to suspect that Jacobs simply needed me to participate 24 because he did not have liquid funds to finance his entire intended purchase of the Genmar 25 stock at the time. Regardless of the actual reason, Jacobs explained to me that this 26 transaction was very important to him and that it was very important to include me to get a 27 deal done. He claimed that he had already secured a buyer for the stock at $14/share, nearly 28 double what we would be paying. -1- DECLARATION OF WILLIAM W. NICHOLSON 4 This second investment in Genmar (“the Genmar 2 investment’) contemplated that I would pay a portion of the purchase price by a promissory note (as well as cash) payable to RDV Genmar Holdings LLC (“RDV Genmar”), which was the entity that sold Genmar stock to me. I agreed with Jacobs that I would go forward with the Genmar-2 investment, but I expressly predicated any agreement on Jacobs promising to pay all obligations in connection with the promissory note, including paying in the first instance any interest. Absent Jacobs’ agreement, I was unwilling to make the Genmar-2 investment. 5 On multiple occasions before July 1, 2005, including in early March 2005, April 2005, May 2005 and June 2005, and at times thereafter up to 2012, Jacobs orally 10 agreed that he would pay all obligations in connection with the promissory note that was part 11 of the Genmar-2 investment, including interest payments on the note. Consistent with his 12 repeated promises, Jacobs signed multiple documents guarantying my payments. 13 6 Attached as Exhibit A are true and correct copies of the following documents: 14 Jacobs’ Guaranty of the Promissory Note, dated July 1, 2005; the Amendment to Promissory 15 Note and Affirmation of Obligations, dated March 27, 2008 (the “Amendment”); the Second 16 Amendment to Promissory Note and Affirmation of Obligations, dated May 30, 2008 (the 17 “Second Amendment”), and the Third Amendment to Promissory Note and Affirmation of 18 Obligations, dated December 31, 2008 (the “Third Amendment”). Each document was 19 signed by Jacobs, whose signature I am well familiar with having seen his signature scores of 20 times before. I signed the Amendment, the Second Amendment and the Third Amendment, 21 and shortly after their execution, these documents were transmitted back to me from RDV 22 Genmar, signed by an officer of Genmar (Robert Schierbeek) whose signature I am well 23 familiar with having seen his signature about a dozen times before. 24 7 In or about July 1, 2005, and in reliance on Jacobs’ promises to me that he 25 would pay the obligations on the note, I agreed to the Genmar-2 investment, purchasing 26 Genmar stock in exchange for $1,000,000 in cash and a promissory note of $4,250,861.40 27 (the “Genmar Promissory Note”). Attached as Exhibit B is a true and correct copy of the 28 Genmar Promissory Note that I executed. I would not have entered into this transaction -2- DECLARATION OF WILLIAM W. NICHOLSON (including the Genmar Promissory Note) if Jacobs had not promised to me that he would pay my obligations on the note. 8 From 2005 to 2013, RDV Genmar demanded that I pay the obligations under the Genmar Promissory Note. Attached as Exhibit C are true and correct copies of certain payment demands I received and still have in my records. 9 Before the payments were due to RDV Genmar (including the first and second interest payments and then subsequent obligations due in 2008, 2010, 2011, 2012 and 2013), I requested that Jacobs make the payments as he had promised and as I had relied upon. Each time, he explained that he could not make the promised payments or payoff the note 10 and that he was unable to make even his own payments in connection with his purchase of 11 Genmar stock. As a result, we had to extend the note to allow time to payoff the obligations 12 as he continued to promise, multiple times in 2008, 2009, 2010 and 2011, to pay. In reliance 13 on the many promises by Jacobs and our course of dealing, I paid and continued to make 14 payments. 15 10. As a result of Jacobs’ failure to honor his promises to me in connection with 16 my obligations to RDV Genmar, the following are certain interest payments I made on the 17 Genmar Promissory Note between December 2005 and September 2013: 18 v On December 28, 2005, I paid $130,359.75 in interest; 19 v On July 3, 2006, I paid $128,234.32 in interest; 20 v On December 29, 2011, I paid $400,000 in interest (including back interest); 21 On April 6, 2012, I paid $125,000 in interest; 22 On June 30, 2012, I paid $250,000 in interest; 23 On December 21, 2012, I paid $125,000 in interest; 24 On March 31, 2013, I paid $125,000 in interest; 25 On June 27, 2013, I paid $125,000 in interest; and 26 On September 27, 2013, I paid $125,000 in interest. 27 11. None of the payments listed above were offset by other obligations that I may 28 have had to Jacobs at the time, outside those obligations claimed by Plaintiffs in this case. 3- DECLARATION OF WILLIAM W. NICHOLSON 12. Attached as Exhibit D are true and correct copies of records of payments at the time that I still have for interest paid to RDV Genmar and taken against my bank account, including checks I wrote on the date and documentation of wires against my account. 13. I did not obtain any benefits from the Genmar-2 investment. I did not receive any actual stock in Genmar. as it was pledged as part of the transaction and as the note was not paid off at the time. Attached as Exhibit E is a true and correct copy of a Pledge Agreement that I executed and received from RDV Genmar with Robert Schierbeek’s signature. As of 2013, Genmar’s stock was worthless as the company declared bankruptcy. 14, I did not make an affirmative claim against Plaintiffs for the money owed to 10 me on the Genmar-2 investment (among other thing s) because I was informed by Plaintiff 11 Mark Jacobs, after his father killed his wife and shot himself, that there were about $110 12 million in claims in excess of their available assets, 13 I declare under penalty of perjury under the laws of the State of Cali fornia that the 14 foregoing is true and correct, 15 Executed on June 12, 2024 at Hous ton, Texas, 16 17 18 ow fh hh 19 20 21 22 23 24 25 26 27 28 EXHIBIT A GUARANTY WHEREAS, RDV Genmar Holdings LLC, a Michigan limited liability company (the “Lender” has agreed to extend credit pursuant to a Note of even date herewith (the “Loan”) to William W. Nicholson (“Borrower”); WHEREAS, the Loan will be evidenced by the Borrower’s promissory note of even date herewith (the “Note”) payable to the order of the Lender in the principal amount of Four Million Two Hundred Fifty Thousand Eight Hundred Sixty-One and 40/100 Dollars ($4,250,861.40); and WHEREAS, the Lender, as a condition to making the Loan, has required the execution of this Guaranty: NOW, THEREFORE, the undersigned (the “Guarantor”), in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby agree as follows: 1 The Guarantor hereby absolutely and unconditionally guarantees to the Lender the full and prompt payment when due, whether at maturity or earlier by reason of acceleration or otherwise, of the repayment of all funds payable under and/or evidenced by the Note (and all interest thereon) and any extensions or renewals thereof and substitutions therefor (all of said sums being hereinafter called the “Indebtedness”); and the Guarantor agrees to pay all costs, expenses and attorneys’ fees paid or incurred by the Lender in endeavoring to collect the Indebtedness and in enforcing this Guaranty. 2 No act or thing need occur to establish the liability of the Guarantor hereunder, and with the exception of full payment, no act or thing (including, but not limited to, a discharge in bankruptcy of the Indebtedness, and/or the running of the statute of limitations) relating to the Indebtedness which but for this provision could act as a release of the liabilities of the Guarantor hereunder, shall in any way exonerate the Guarantor, or affect, impair, reduce or release this Guaranty and the liability of the Guarantor hereunder; and this shall be a continuing, absolute, unconditional and joint and several guaranty and shall be in force and be binding upon the Guarantor until the Indebtedness is fully paid. 3 The liability of the Guarantor hereunder shall not be affected or impaired in any way by any of the following acts or things (which the Lender is hereby expressly authorized to do, omit or suffer from time to time without notice to or consent of anyone): (i) any acceptance of collateral security, guarantors, accommodation parties or sureties for any or all Indebtedness; (ii) any extension or renewal of any Indebtedness (whether or not for longer than the original period) or any modification of the interest rate, maturity or other terms of any Indebtedness; (iii) any waiver or indulgence granted to the Borrower, any delay or lack of diligence in the enforcement of the Note or any other Indebtedness, or any failure to institute proceedings, file a claim, give any required notices or otherwise protect any Indebtedness; (iv) any full or partial release of, compromise or settlement with, or agreement not to sue, the Borrower or any other guarantor or other person liable on any Indebtedness or the death of any other guarantor or obligor on any Indebtedness; (v) any release, surrender, cancellation or other discharge of any Indebtedness or the acceptance of any instrument in renewal or substitution for any instrument evidencing Indebtedness; (vi) any failure to obtain collateral security (including rights of setoff) for any Indebtedness, or to see to the proper or sufficient creation and perfection thereof, or to establish the priority thereof, or to preserve, protect, insure, care for, exercise or enforce any collateral security for any of the Indebtedness; (vii) any modification, alteration, substitution, exchange, surrender, cancellation, termination, release or other change, impairment, limitation, loss or discharge of any collateral security for any of the Indebtedness; (viii) any assignment, sale, pledge or other transfer of any of the Indebtedness; or (ix) any manner, order or method of application of any payments or credits on any Indebtedness. The Guarantor waives any and all defenses and discharges available to a surety, guarantor, or accommodation co-obligor, dependent on their character as such. 4 The Guarantor waives any and all defenses, claims, and discharges of the Borrower, or any other obligor, pertaining to the Indebtedness, except the defense of discharge by payment in full. Without limiting the generality of the foregoing, the Guarantor will not assert against the Lender any defense of waiver, release, discharge in bankruptcy, res judicata, statute of frauds, or anti-deficiency statute, which may be available to the Borrower in respect of the Indebtedness, and the Guarantor expressly agrees that he shall be and remain liable for any deficiency remaining after the disposition of any collateral securing any Indebtedness, notwithstanding provisions of applicable law that may prevent the Lender from enforcing such deficiency against the Borrower. The liability of the Guarantor shall not be affected or impaired by any voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar event or proceeding affecting, the Borrower or any of its assets. The Guarantor will not assert against the Lender any claim or defense available to the Guarantor against the Borrower. 5 The Guarantor also hereby waives: (i) presentment, demand for payment, notice of dishonor or nonpayment, and protest of the Indebtedness; (ii) notice of the acceptance hereof by the Lender and of the creation and existence of all Indebtedness; and (iii) notice of any amendment to or modification of any of the terms and provisions of the Note or any other agreement evidencing any Indebtedness. The Lender shall not be required to first resort for payment of the indebtedness to the Borrower or other persons or corporations, their properties or estates, or to any collateral, property, liens or other rights or remedies whatsoever. 6 Whenever, at any time or from time to time, the Guarantor shall make any payment to the Lender hereunder, the Guarantor shall notify the Lender in writing that such payment is made under this Guaranty for such purpose. If any payment applied by the Lender to the Indebtedness is thereafter set aside, recovered, rescinded or required to be returned for any reason (including, without limitation, the bankruptcy, insolvency or reorganization of the Borrower or any other obligor), the Indebtedness to which such payment was applied shall for the purposes of this Guaranty be deemed to have continued in existence, notwithstanding such application, and this Guaranty shall be enforceable as to such Indebtedness as fully as if such application had never been made. 1 No payment by the Guarantor pursuant to any provision hereof shall entitle the Guarantor, by subrogation to the rights of the Lender or otherwise, to any payment by the Borrower or out of the property of the Borrower until all of the Indebtedness (including interest) 2 and all costs, expenses and attorneys’ fees paid or incurred by the Lender in endeavoring to collect the Indebtedness and enforcing this Guaranty have been fully paid. The Guarantor will not exercise or enforce any right or contribution, reimbursement, recourse or subrogation available to the Guarantor as to any Indebtedness, or against any person liable therefor, or as to any collateral security therefor, unless and until all such Indebtedness shall have been fully paid and discharged. 8 This Guaranty shall be binding upon the heirs, legal representatives, successors and assigns of the Guarantor, and shall inure to the benefit of the successors and assigns of the Lender and the laws of the State of Minnesota shall govern matters pertaining to this Guaranty and the enforceability thereof. IN WITNESS WHEREOF, the Guarantors have executed this Guaranty as of this 1 day of July, 2005. GUARANT' fe J 4 Irwin Jacobs £ 2~ Co 402301.1 AMENDMENT TO PROMISSORY NOTE AND AFFIRMATION OF OBLIGATIONS THIS AGREEMENT made and entered into as of this X day of March, 2008 among WILLIAM W. NICHOLSON (the “Payor”), RDV GENMAR HOLDINGS LLC (the “Payee”) and IRWIN L. JACOBS (the “Guarantor”). Recitals The Payor is indebted to the Payee pursuant to a Promissory Note dated July 1, 2005 in the Principal amount of $4,250,861.40 having a Maturity Date, as defined therein, of July 1, 2008, secured by a Pledge Agreement between Payor and Payee dated as of July 1, 2005 (the “Pledge Agreement”) and further secured by the Guaranty of Irwin L. Jacobs in favor of Payee dated as of July 1, 2005 (the “Guaranty”) The Payor and Payee wish to amend the Note. NOW THEREFORE, the parties hereto promise and agree as follows: 1 The Maturity Date of the Note, as defined therein, is hereby extended to March 31, 2009. 2 The sentence of the Note that presently reads: “From and after the occurrence of an Event of Default and during the continuance thereof, interest on the unpaid principal balance shall accrue at the rate of nine percent (9%) per annum (the “Default Rate”)” is hereby amended to read as follows: “If an Event of Default shal! occur, interest on the unpaid principal balance of the note shall accrue at nine percent (9%) per annum (the “Default Rate”) for the period commencing on July 1, 2008 and ending on the date that the Event of Default shall be cured or waived in writing by the holder hereof.” 3. Except as amended pursuant to Sections 1 and 2, above, the Note shall remain in full force and effect as written. 4 Payor hereby affirms his obligations pursuant to the Note as hereby amended and warrants and represents that he has no defenses thereto in law or in equity. Payor hereby also affirms that the Pledge Agreement remains in full force and effect and secures the Note as hereby amended and warrants and represents that he has no defenses thereto in law or in equity. 5 Guarantor hereby consents to the amendments to the Note as set forth in Sections 1 and 2, above, and affirms his obligations pursuant to the Guaranty and affirms that it extends to the Note as so amended. Guarantor further hereby warrants and represents that he has no defenses to the Guaranty in law or in equity. 6 This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties may execute this Agreement by signing any such counterpart. IN WITNESS WHEREOPF, the parties have executed this Agreement as of the day and year first above written. ‘ WY William W. Nicholson RDV Genmar LLC By: RDV Corporation, its Manager By Robert H. Schi: Irwin L. Jacobs 6 This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties may execute this Agreement by signing any such counterpart IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. William W. Nicholson RDV Genmar LLC By: RDV Co: poration, its Manager By: AZ Ge Rob Treasurer ~> Date: December 27, 2011 4 PM MST To: "Geary, Brendan (RDV Corp - Investment Manageme nt)” c> Subject: RE: Nicholson uct Lons* The funds can be sent to RDV Genmar Holdings, LLC. Below are the wire instr The Northern Trust Company Chicago, IL ABA #071000152 Credit to: RDV Genmar Holdings, LLC Account #2702622 amount expected, I can have the bank watch out for it. Let me know If you know the exact else. if you need anyth ing ‘Thanks, Scott Loca) J ites Loki \2( 30/1 doo. |. 14-17 3849 ww21 650 ILLIAM W. NICHOLSON Tat ~ EL ore Lf |e] 2012 oy a 1 N POST OAK LN. SUITE 2105 HOUSTON, TX 77024 a Sox PAY TO THE OADER OF ONY Hunde RDV Coevmag, fv er VOTH ole fe ag Ay’ bea Ae Ae | $ 125 wom it Detats on Back. fae arp en ba A Gecag Bao 3 i ape ype cee “4 a est ® Whitney National Bank a 9 WHITNEY’ xs Morgan ty, Loufedgine whitneybank.com ae MEMO >O6500007 4! 725822690 a" 484955 N357 : fe 2 wx) 17 126 WILLIAM W, NICHOLSON 3723 121 N POST OAK LN. SUITE 2105, HOUSTON, TE 77024 “ mn mer DV Gen tage j Ont Ont fueJundledbY Sed he 6 Ou. jaw) ee 1 $/zsso00 ow _pousns a wo Cvumer BMD Whitney National Morgan City, Yawy oh ef tye ‘Suihery meet = MEMO_ === — eee = 0777072012 ~$125,000.00 17, 6 3961 i WILLIAM W. NICHOLSON a~, 121 N POST OAK LN. SUITE 2105 HOUSTON, TX 77024 on (Ze =~ G1 - 2012 ere RDOV Gewmakr Holdines LLC $ 125 006” ~ nites Onshundrs 2d TWew ry -f A a WHITNEY’ Cage op Loge Bank whitneybank com a Meuo cae a ee leur,A ans 2 3923 WILLIAM W. NICHOLSON & 21 N POST OAK LN. SUITE 2105 HOUSTON, TX 77024 ee 3i/ 20/3 | s nar RDV Gentnacfletdin rhe 1$ /25;a00~ ut geal 2 Oua§ rae 20 — rensans Rts le Se 'TNEY? Whitney National Bank i Morgan City, Louisiang \Neceams MEMO Hara wl “el i erties wisest ams nae sa yn oes: pour: as 14-17, 15? WILLIAM W. NICHOLSON 3859 121 N POST OAK LN. SUITE 2105 HOUSTON, TX 77024 DATE Ju e 27, 20/3 imme RDV Gea mar “Hel. w LUC 1$ Sy 0007 1 Ons bundeed-TeenTy - Quer 1 2¢e LARS ee A BED i: Whitney National B: = a aN. “x — MEMO. Gegeee N TT SBS BEEN — a tie 3874 WILLIAM W. NICHOLSON 121 N POST OAK LN. HOUSTON, TX SUITE 2105 77024 Bll Yayfas : PAYTO THE ORDER OF VS LLC 1 $25,000 eee DOLLARS A SS Senet Yd WHITNEY" EY och Nal whitney —nicheees 10/02/2013 3874 $125.000-n0 EXHIBIT E < * PLEDGE AGREEMENT THIS SECURITY AND PLEDGE AGREEMENT, effective as of the 1" day of July, 2005 by William W. Nicholson (the “Pledgor”), in favor of RDV Genmar Holdings LLC, a Michigan limited liability company, having an address of 126 Ottawa Avenue N.W., Suite 500, Grand Rapids, Michigan 49503 (the “Pledgee”) ‘WITNESSETH WHEREAS, Irwin L. Jacobs and the Pledgee have entered into that certain Stock Purchase Agreement dated as of December 10, 2004, as amended (the “Stock Purchase Agreement”) which has been assigned in part to Pledgor and pursuant to which Pledgor has on the date hereof purchased common stock of Genmar Holdings, Inc. (the “Company”) with a portion of the purchase price being paid pursuant to that certain Promissory Note (the “Note”) of even date herewith payable to the order of the Pledgee in the original principal amount of $4,250,861.40, and the Pledgor has agreed in consideration thereof and to secure the payment of the Note and the performance of all other obligations of the Pledgor under the Note (collectively, the “Obligations”) to pledge the 607,036 shares of the stock in the Company acquired by Pledgor pursuantto the Stock Purchase Agreement (the “Shares”); WHEREAS, the Pledgor and the Pledgee desire to enter into this Agreement to provide for such pledge, all upon the terms and subject to the conditions hereinafter set forth. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1 Pledge. Pledgor hereby pledges and grants a first priority security interest to the Pledgee (the “Security Interest”) in and to all of the Shares, together with all distributions or allocations of distributable cash in respect thereof (collectively referred to as the “Pledged Interest”). Pledgor will, upon receipt, immediately deliverto the Pledgee and pledge as additions to the Pledged Interest all securities or other property, distributed on account of any of the Pledged Interest such as stock dividends and securities resulting from stock splits, reorganizations and recapitalizations and mergers. The Pledgor grants the aforementioned Security Interest to secure the full and faithful payment and performance by the Pledgor of the Obligations 23 fection0’ The Security Interest shall be perfected by delivering the Shares to Pledgee, along with the execution of a blank stock power. In addition, at the request of the Pledgee, Pledgor hereby agrees to take all reasonable action to further perfect the Security Interest, including the execution of an assignment separate from certificate and the filing of any necessary Uniform Commercial Code statements and, if the Shares are held in the name of an individual, the recitation of appropriate representations regarding the pledge of the securities and the consideration for such pledge. ovenants, entations and V arrantiesof the ledgo epres eds . As further security. for the full and faithful performance of the Obligations, the Pledgor hereby covenants, represents and warrants to the Pledgee as follows: (a) Other than any defects in title existing because of the condition of title conveyed to Pledgor by Pledgee, the Pledgor has good and marketable title to the Pledged Interest, free and clear of all claims, liens or encumbrances and Pledgor shall not hereafter, so long as this Agreement remains in effect, grant a security interest or other lien or encumbrance in the Pledged Interest in favor of any other person or entity. ) The Pledgor’s right to the Pledged Interest is not subjectto any defense, right of set-off or counterclaim and the Pledgor will defend Pledgee against all claims or demands of all persons other than Pledgee. No financing statement covering all or any of the Pledged Interest is on file in any public office. © The Pledgor hereby acknowledges that this Agreement and the pledge and Security Interest granted hereby is supported by good and valuable consideration and is binding upon the Pledgor. @) The Pledgor has the power and authority to execute this Agreement and to grant the Security Interest in the Pledged Interest Pledgor has granted hereunder. © The Pledgor will at any time or times hereafter execute and deliver such financing statements or other documents and instruments as Pledgee may request to establish, maintain and perfect the Security Interest in the Pledged Interest. 4 Term. @ This Agreement shall remain in full force and effect until the payment in full ofall Obligations. Upon full performance of all of the Obligations, Pledgee shall transfer to Pledgor all of the remaining stock constituting the Pledged Interest and deliver any stock powers or assignments separate from certificate for cancellation and all rights received by Pledgee under this Agreement shall terminate. () Upon any partial prepayment of the principal of the Note, there shall be released from the Pledged Interest that number of Shares equal to the total dollar amount of such prepayment of principal of the Note divided by $7.00. Pledgee shall arrange with the Company to have sufficient certificates so the requisite number of shares to be transferred to Pledgor hereunder can be so transferred. 5Amendment. This Agreement may not be amended or modified, nor may any of its terms, including without limitation, terms affecting the Obligations, be modified or waived, except with the Pledgee’s written consent. 6. . Upon the occurrence of an Event of Default as defined in the Note, including but not limited to the failure to pay principal or any installment of interest when due, 402293.1 2 + the Pledgee shall have the following remedies which may be exercised from time to time in Pledgee’s sole discretion: @) Pledgee shall have the exclusive right to vote the shares and Pledgor shall deliver to Pledgee from time to time executed proxies conferring such right upon Pledgor; ) The Pledgee may, at its option, and in the name of the Pledgor or otherwise, collect and dispose of all or any part of the Pledged Interest at public or private sale or otherwise, to the extent permitted under the terms of the Uniform Commercial Code as in effect in the State of Minnesota and/or other applicable law. Any requirement of reasonable notice shall be met if the Pledgee sends such notice to Pledgor, by registered or certified mail, at least five (5) business days prior to the date of sale, disposition or other event giving rise to the required notice. THE PLEDGEE MAY BE THE PURCHASER AT ANY SUCH SALE. The proceeds of any sale shall first be applied by Pledgee to pay, or reimburse it for, the expenses of sale, then to all of the Obligations and any excess shall be paid to the Pledgor. In the event the proceeds of any sale are insufficient to pay the Obligations in full Pledgor shall remain liable for the amount of any deficiency to the extent permitted by applicable law. Pledgor agrees and acknowledges that because of applicable securities laws, the Pledgee may not be able to effect a public sale of the Shares and sales at a private sale maybe on terms less favorable than if such securities were sold at a public sale and may be at a price less favorable than a public sale. Pledgor agrees that all such private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner. ©) The Pledgee may exercise or enforce any and all other rights and remedies available to the Pledgee by law or agreement against the Pledgor. 7 Wai No delay or failure by the Pledgee and the exercise of any right or remedy shall constitute a waiver thereof and no single or partial exercise by the Pledgee of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy. 8. Notices. All notices, requests, demands and other communications hereunder shall be deemed to have been given when personally delivered or deposited in the United States mail, mailed first class, registered or certified, postage prepaid, addressed to the last known address of the respective party. 8. NV . This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota without regard to the choice of law principles hereof. 10. Jurisdiction. Pledgor hereby submits to the jurisdiction of any Minnesota state court or federal court over any action or proceeding arising out of or relating to this Agreement. Pledgor irrevocably waives, to the fullest extent, that he may effectively do so the defense of an inconvenient form of maintenance of such action or proceeding. Pledgor agrees that judgment filed by appeal, or expiration of time to appeal without an appeal being taken, in any such action or proceeding shall be conclusive and may be enforced jurisdiction by suit on the judgment or any other manner provided 402293.1 3 5% by law. Nothing in this paragraph shall affect the right of the Pledgee to serve legal process in any other manner permitted by law against Pledgor or his property and the courts of any other jurisdiction. 11. Taxes, The Pledgor shall be responsible for the payment of all state and federal taxes payable as the result of any sale or disposition of any and all of the Pledged Interest. 12. © Binding Effect. This Agreement shall be binding upon and inureto the parties hereto and their assigns and successors. 13. Severability. In the event any provision hereof is determined to be unenforceable or invalid, such provision or such part thereof which may be unenforceable shall be deemed severed from this Agreement and the remaining provisions carried out with the same and effect as if the severed provision or part thereof had not been made a part hereof. 14. Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties may execute this Agreement by signing any such counterpart. IN WITNESS WHEREOF, the Pledgor and the Pledgee have executed and delivered this Agreement as of the day and year first above written. PLEDGEE: RDV Genmar Holdings LLC By: RDY. ration, it By: Robert H. Schi: k, Treasurer PLEDGOR: / Al illiam W. Nicholson 402293.1 PROOF OF SERVICE I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is: 2049 Century Park East, Suite 2460, Los Angeles, CA 90067; my email is gregg@foundationlaw.com. On June 12, 2024, I caused the following documents to be served: DECLARATION OF WILLIAM NICHOLSON IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION on interested parties in this action by placing the [J original | true copy(ies) thereof in an envelope directed to: Craig S. Granet craig.granet@rimonlaw.com Claire K. Mitchell claire.mitchell@rimonlaw.com 10 Rimon, P.C. 11 200 E. Carrillo St, Suite 201 Santa Barbara, California 93101 12 & BY EMAIL: I served the above-referenced document by electronic service, to the 13 email addresses listed above, pursuant to the rules on such service, including CCP 1010.6. To the best of my knowledge, at the time of this transmission, the 14 transmission was delivered without error. 15 BY PERSONAL HAND SERVICE: I caused the foregoing documents to be delivered to the above addressees by providing to our attorney service for delivery, with 16 instructions to leave them with the attorney(s) personally or with a receptionist or person having charge of the office. To the extent that there was no person in the 17 office, I directed the attorney service to leave the documents in a conspicuous place in the office between the hours of 9:00 a.m. and 5:00 p.m. 18 & I declare under penalty of perjury under the laws of the State of California that the 19 above is true and correct. 20 Executed on June 12, 2024 at Los Angeles, California. 21 /s/ Gregg Zucke 22 23 24 25 26 27 28 5. DECLARATION OF WILLIAM W. NICHOLSON