Preview
Perry J. Woodward (State Bar No. 183876) Electronically Filed
pwoodward@hopkinscarley.com by Superior Court of CA,
Liam J. O’Connor (State Bar No. 246638) County of Santa Clara,
loconnor@hopkinscarley.com on 5/20/2020 5:49 PM
HOPKINS & CARLEY
A Law Corporation
Reviewed By: P. Lai
The Letitia Building Case #19CV354297
70 S First Street Envelope: 4358828
San Jose, CA 95113-2406
mailing address:
P.O. Box 1469
San Jose, CA 95109-1469
Telephone: (408) 286-9800
Facsimile: (408) 998-4790
Attorneys for Defendants
Marc E. Poirier and Anne E. Poirier,
10 trustees of The Poirier Family Revocable Trust
Dated June 10, 1987
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12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 COUNTY OF SANTA CLARA
14 JEREMY ROVINSKE, CASE NO. 19CV354297
i Plaintiff, REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF MOTION TO COMPEL
16 Vv. FURTHER RESPONSES TO THE
POIRIERS’ DEMANDS FOR
17 MARC E. POIRIER AND ANNE E. PRODUCTION OF DOCUMENTS (SET
POIRIER trustees of the Poirier Family ONE), REQUESTS FOR ADMISSION (SET
18 Revocable Trust Dated June 10, 1987, ONE), FORM INTERROGATORIES (SET
et al., TWO); REQUEST FOR MONETARY
19 SANCTIONS
Defendants.
20 Date:
Time:
21 Dept.:
Judge:
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File Date: September 4, 2019
23 AND RELATED CROSS-ACTION Trial Date: Not Set
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HopKINs & CARLEY 697\3521212.1
ATTORNEYS AT LAW REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY
SAN JOSE #PALO ALTO
RESPONSES AND REQUEST FOR MONETARY SANCTIONS
Pursuant to California Evidence Code section 452(d), Defendants and Cross-
Complainants Marc E. Poirier and Anne E. Poirier (the “Poiriers”) hereby request that this court
take judicial notice of the following court and official records in connection with the Poiriers’
Motion to Compel Further Responses to the Poiriers’ Demands for Production (Set One),
Requests for Admission (Set One), and Form Interrogatories (Set Two), and For Monetary
Sanctions against Plaintiff and Cross-Defendant Jeremy Rovinske (“Rovinske”) and his counsel
1 Rovinske’s September 4, 2019 Complaint against the Poiriers in the above
referenced action, a true and correct copy of which is attached hereto as Exhibit 1.
Dated: May 20, 2020 HOPKINS & CARLEY
A Law Corporation
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By
12 Perry J. oddward
Liam J. O’Connor
13 Attorneys for Defendants
Marc E. Poirier and Anne E. Poirier,
14 trustees of The Poirier Family Revocable
Trust Dated June 10, 1987
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Hopkins & CARLEY 697\3521212.1 -2-
ATTORNEYSAT LAW REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY
SAW JOSE #PALO ALTO
RESPONSES AND REQUEST FOR MONETARY SANCTIONS
E-FILED
9/4/2019 11:08 AM
LAW OFFICES OF Clerk of Court
JAMES M. SULLIVAN, INC Superior Court of CA,
ATTORNEYS AT LAW
225 N. SANTA CRUZ AVENUE County of Santa Clara
LOS GATOS, CALIFORNIA 95030-7275 19CV354297
‘TELEPHONE (408) 395-3837 Reviewed By: M Vu
FAX (408) 354-6040
STATE BAR #047178
Plaintiff, JEREMY ROVINSKE
Attorneys for
SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
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JEREMY ROVINSKE, CASE NO. 19CV354297
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12 Plaintiff, COMPLAINT FOR SPECIFIC
PERFORMANCE
12 vs. (UNLIMITED CIVIL CASE)
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MARC E. POIRIER and ANN E. POIRIER, )
15 TRUSTEES OF THE POIRIER FAMILY)
REVOCABLE TRUST DATED JUNE 10, )
16 1987, and DOES I through V, Inclusive, )
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Defendants. )
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19 Plaintiff alleges:
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1. Defendants are and at all times herein mentioned were residents of Santa Clara
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County, California.
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2. Plaintiffis ignorant of the true names and capacities of Defendants sued herein
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as DOES 1 to 5, Inclusive and therefore sues these Defendants by such fictitious names. Plaintiff
25 will amend this Complaint to allege their true names and capacities when ascertained.
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COMPLAINT FOR MONEY
3. On or about November 1, 2013 at Morgan Hill, California Plaintiff and his
wife, ANGELLE POIRIER ROVINSKE, and Defendants entered into a written agreement,
a copy of which is attached as Exhibit "A" and incorporated by reference for the purchase by
Plaintiff and his wife and sale by Defendants of 61,000 shares of common stock of National
Mailing Service, Inc., a California Corporation, for the total sale price of Six Hundred Forty
Thousand Five Hundred ($640,500) Dollars to be paid pursuant to the terms of that certain
Promissory Note attached to the Stock Purchase and Sale Agreement which Note was secured
by a Pledge Agreement also attached to the Stock Purchase and Sale Agreement,
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4. The consideration set forth in the agreement was the fair and reasonable value
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of the subject shares of common stock at the time the agreement was entered into and the
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8 contract is, as to Defendants, just and reasonable. Plaintiff's wife, ANGELLE POIRIER
Sen
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14 ROVINSKE has declined to join Plaintiff in this action. Plaintiff and his wife, ANGELLE
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g POIRIER ROVINSKE, as co-owners of the 61,000 shares of common stock purchased from
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gs Defendants pursuant to the terms of the agreement, each effectively own one-half of said shares,
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resulting in Plaintiff having equitable and legal ownership as to one-half of the shares purchased,
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19 or 30,500 shares of common stock of National Mailing Service, Inc.
20 5. Asa result of a non-payment event occurring with regard to performance of
21 the terms and conditions of the installment payments due under the Promissory Note made part
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of the Stock Purchase and Sale Agreement, Defendants, on or about July 26, 2019 declared a
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default to occur and demanded payment of the full unpaid principal then due and owing under
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the Promissory Note and all interest then accrued. Defendants at such time declared that the
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26 amount of the unpaid obligation left to be satisfied was Two Hundred Eleven Thousand Seven
27 Hundred Seventy-Four and 32/100 ($211,774.32) Dollars as of July 1, 2019 together with annual
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COMPLAINT FOR MONEY
interest of 3.32% from that date of Nineteen and 26/100 ($19.26) Dollars per day. A copy of
Defendants’ demand is attached hereto as Exhibit "B" and made a part hereof.
6. Asa result of the Declaration of Default, Plaintiff on or about August 9, 2019
tendered payment to Defendants of the demand amounts and arranged for delivery to Defendants
on August 9, 2019 of certified funds in the form of two bank checks payable to the POIRIER
FAMILY REVOCABLE TRUST in the amount of Two Hundred Eleven Thousand Seven
Hundred Seventy-Four and 32/100 ($211,774.32) Dollars as the unpaid balance due of principal
and interest as of July 1, 2019, together with the additional accrued interest payment due through
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August 9, 2019 as demanded in the amount of Seven Hundred Seventy and 51/100 ($770.51)
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wa 12 Dollars. Asa result of this delivery of full tender of payment, all obligations and liabilities under
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13 the Pledge Agreement securing payment of the Promissory Note made part of the Purchase and
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ath Sale Agreement are deemed satisfied. Pursuant to Paragraph 9 of said Pledge Agreement
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ss gS payment of the balance due under the Promissory Note results in the termination of the Pledge
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ag Agreement and Defendants are required under that Paragraph 9 to return to Plaintiff and his wife
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the share certificates representing the 61,000 shares of stock purchased by Plaintiff and his wife
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19 that were pledged as collateral, and in addition Defendants were required to return to Plaintiff
20 and his wife the original stock power and proxy, both dated December 7, 2013, which
21 instruments are incorporated and made part of the Pledge Agreement securing payment of the
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Promissory Note under the Stock Purchase and Sale Agreement.
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7. With tender of delivery of final payment due to Defendants pursuant to their
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demand, Plaintiff and his wife have performed all conditions, covenants and promises required
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26 by Plaintiff on his part, to be performed in accordance with the terms and conditions of the Stock
27 Purchase and Sale Agreement, Note and Pledge Agreement, and Plaintiff has demanded on his
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part release and delivery of certificates or other evidence of unencumbered ownership of
COMPLAINT FOR MONEY
Plaintiff's one-half interest in the 61,000 shares purchased by Plaintiff and his wife, or 30,500
shares of common stock of National Mailing Service, Inc.
8. Defendants have failed and refused, and continue to fail and refuse, to perform
the conditions of the Contract and Pledge Agreement on their part in that they refuse to return
to Plaintiff share certificates representing his ownership of the 30,500 shares of stock held as
collateral, and surrender the original stock power and proxy dated December 7, 2013 in
termination of the Pledge Agreement.
9. For the reasons heretofore stated, Plaintiffhas no adequate legal remedy in that
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damages, if awarded, can not be properly ascertained since there is no fixed market value for the
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shares of stock and damages will be inadequate to compensate Plaintiff for the detriment suffered
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a5 be 13 by him.
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a 14 10. The subject Stock Purchase and Sale Agreement and Pledge Agreement
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=< provide that in the event of any litigation between the parties arising out of the agreement or the
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96 rights and duties of the parties thereto, the prevailing party in such proceedings shall be entitled
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to reasonable attorney's fees.
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19 WHEREFORE, Plaintiff prays Judgment against Defendants as follows:
20 1 That Defendants be ordered to execute and deliver to Plaintiff a sufficient
21 conveyance of the shares of common stock described herein together with return of the stock
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power and proxy due on termination of the Pledge Agreement under which the subject shares of
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stock were retained by Defendants as collateral;
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2. For reasonable attorney's fees accordingly to proof;
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26 3. For cost of suit herein incurred; and
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COMPLAINT FOR MONEY
4, For such other and further relief as the Court may deem proper.
paren. 9/4/12 JAMES SULLIVAN,
Attorn for Plaintiff
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COMPLAINT FOR MONEY
VERIFICATION
(446, 2015.5 C.C.P,]
STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
document
Jam the Plaintiff in the above entitled action; I have read the foregoing
true of my own
and know the contents thereof; and I certify (or declare) that the same is
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knowledge, except as to those matters which are herein stated upon my information or belief,
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as to those matters, 1 believe to be true.
4 8 12
88 I certify (or declare) under penalty of perjury, that the foregoing is true and
a, ab 13
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<& 14 correct.
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ss a:
15 Executed on_S#¥7_3 2019, at Los Gatos, California.
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18 JE MY ROVINSKE
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COMPLAINT FOR MONEY
STOCK PURCHASE AND SALE AGREEMENT
This Stock Purchase and Sale Agreement (“Agreement”) is effective November 1, 2013
(“Effective Date”), and is made by and between Marc E. Poirier and Ann E. Poirier, Trustees of
the Poirier Family Revocable Trust dated June 10, 1987 (“Seller”) and Angelle Poirier Rovinske
and Jeremy Rovinske, husband and wife (“Purchaser”).
RECITALS
A. Seller owns Sixty-One Thousand (61,000) shares (‘‘Seller’s Shares”) of the common
stock of National Mailing Service, Inc., a California corporation (“Company”).
B. Seller wishes to sell to Purchaser and Purchaser wishes to purchase from Seller, all of
Seller’s right, title, and interest in Seller’s Shares, on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. Purchase Price. The price per share shall be Ten and 50/100 Dollars ($10.50). The
total purchase price for the Seller’s Shares shall be Six Hundred Forty Thousand Five Hundred
Dollars ($640,500.00), to be paid pursuant to the Promissory Note attached hereto as Exhibit A,
secured by a Pledge Agreement attached hereto as Exhibit B.
eller’s resentations and Wai tie: Seller represents and warrants that Seller
owns the Seller's Shares to be sold to Purchaser under this Agreement free and clear of all liens,
encumbrances, security agreements, options, claims, charges, and restrictions.
3 “AS IS” Purchase. Purchaser acknowledges that, except as provided in paragraph 2,
the Seller’s Shares are being sold “AS IS, WHERE IS,” with no representations or warranties of
Seller with regard to Company or its shares, except as specified in this Agreement.
4. Closing Date. The sale of shares hereunder will take place at the offices of Company
on or before November 1, 2013, or at such other time and place as the parties may agree to in
writing (the “Closing”).
5 Seller’s Obligations at Closing. At the Closing, and subject to the terms and
conditions of the Pledge Agreement, Seller shall deliver to Purchaser a certificate representing
the Seller’s Shares, registered in the name of Seller, duly endorsed by Seller for transfer or
accompanied by an assignment of the Seller’s Shares duly executed by Seller.
6. Purchaser's Obligations at Closing. At the Closing, Purchaser shall deliver to Seller,
the promissory note payable to Seller, in the amount of the Purchase Price, and the Pledge
Agreement fully executed by the Purchaser with the written acceptance and acknowledgment of
Company to the transfer of the Seller’s Shares to Purchaser.
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EX#/B/T ‘A
7. Conditions to Closing. This Agreement is subject to the prior execution and delivery of
this Purchase and Sale Agreement, the Promissory Note and the Pledge Agreement.
8. No Assignment: Binding on Successors. This Agreement shall be binding on, and
shall inure to the benefit of, the parties hereto and their respective heirs, legal representatives,
successors, and assigns. No party may assign its obligations hereunder without each other party’s
prior written consent.
9. Attorneys’ Fees. Should suit or arbitration be brought to enforce or interpret any part
of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees to
be fixed by the court or arbitrator (including, without limitation, costs, expenses and fees on any
appeal),
10, Notices. Any notice or other communication required or permitted by one party to
the other shall be sent by first class mail, personal delivery, or facsimile to such party at the
addresses shown at the end of this Agreement.
11. Governing Law. This Agreement shall be construed in accordance with the laws of
the State of California.
12, Counterpart Execution. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the same instrument.
13, Further Assurance. Each party agrees to cooperate with the other party and to
execute such additional instruments and documents as may be reasonably necessary or proper in
order to carry out the provisions of this Agreement.
14, Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remaining provisions will continue in full
force and effect without being impaired or invalidated in any way.
15. Negotiated Transaction. The provisions of this Agreement were negotiated by all the
parties and this Agreement shall be deemed to have been drafted by all the parties. Each of the
Parties to this Agreement understands that Wealth and Estate Planning Legal Services, Inc. is
acting as legal counsel to Seller. Each of the Parties acknowledges that Wealth and Estate
Planning Legal Services, Inc. has represented in the past and currently represents the Seller in
other matters. Buyer hereby acknowledges that they have been advised to seek separate legal
counsel with respect to the effects and interpretation of this Agreement before executing this
Agreement and that it has been cither advised by legal counsel of its own choosing as to the
significant effect which executing this Agreement has on its rights or has freely chosen not to
seek such advice. The Parties consent to Wealth and Estate Planning Legal Services, Inc.
representing the Seller on the transaction contemplated herein and other matters and waive any
conflicts concerning the same.
16, Survival of Representations and Warranties. All representations, warranties,
covenants, and agreements of the parties contained in this Agreement, or in any instrument,
certificate, or other writing provided for in it, shall survive the Closing Date.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date written
above.
SELLER: PURCHASER
PoiriexFamily cable Trust
Maye E. Poirier, Trustee
.
= £5 o—
By
Ann E, Poirier, Trustee Jeremy Rovinske
Address: 18330 Crystal Drive Address; 7 N) Central Ave
Morgan Hill, CA_95037 Canpbelt Ch SOP -
EXHIBIT A
PROMISSORY NOTE
PROMISSORY NOTE
San Jose, CA.
Principal Amount: $640,500
3.320% Date: November 1, 2013
Interest Rate:
Obligation. By this Promissory Note (the “Note”) effective as of November 1,
2013 (the “Effective Date”), Angelle Poirier Rovenske and Jeremy Rovenske (“Maker”), jointly
and E, Poirier and Ann
severally, prot mise to pay to Mare E. Poirier, Trustees of the Poirier
Family Revocable Trust dated June 10, 1987 (“Holder”), at 18330 Crystal Drive, Morgan Hill,
CA 94037, the p rincipal sum of Six Hundred Forty Thousand Five Hundred Dollars
($640,500.00)(the “Principal Sum”), together with interest thereon at the rate provided below
from the Effective Date until paid.
Interest, This Note shall accrue interest on the Principal Balance from time to
time outstanding at the rate of Three and Thirty-Two hundredths percent (3.320%) per annum.
Payment. The Principal Sum and all accrued interest will be paid in lawful money
in
of the United States of America as follows: principal and interest will be due and payable
Dollars
equal monthly installments of Six Thousand Two Hundred Seventy-Nine and 77/100
g on the Ist day of each month
($6,279.77), commencing December 1, 2013, and continuin
Sum and all
thereafter until November 1, 2023, at which time the balance of the Principal
accrued interest thereon will be paid-in-full.
Prepayment. Maker reserves the right to prepay all or any part of this Note
without penalty, and interest will immediately cease on any amount so prepaid. Should Maker
make any payments on this Note prior to the due date, any payment made will be credited first to
any accrued but unpaid interest on the principal and then to the principal balance, and interest
shall cease on the principal so credited.
Default. Upon the occurrence of an Event of Default, as defined below, the entire
unpaid principal sum of this Note and all accrued interest thereon at once becomes due and
payable without notice, at the option of Holder. Failure to exercise such option will not constitute
a waiver of the right to exercise it in the event of any subsequent default. For the purposes of this
Note, each of the following constitutes an Event of Default under this Note:
(a) Maker fails to make payment of any installment of principal or
interest under this Note as and when due;
(b) Maker becomes insolvent, has a receiver or trustee of all or any
part of Maker’s property appointed, makes an assignment of assets for the benefit of Maker’s
creditors, files or has filed against it a petition in bankruptcy; or
(c) Maker is dissolved, liquidated or terminated.
(d) Any ownership interest of Maker existing as of the date of this
Note is transferred without the prior written consent of Holder.
His
Any breach of or default under the Pledge Agreement securing
(e)
payment of this Note.
any payment of interest or
Late Fees. Jf Holder fails to receive from Maker
by way of damages of five percent (5%) of
principal required on the due date, then a late charge
due and payable. Maker recognizes
the amount of each unpaid installment wi Il be immediately expenses,
in Holde r incurring additional
that failure to make payments when due will result
, in servicing this Note, and in
including, without limitation, collection and accounting charges
that it would be extremely difficult and
loss to Holder of the use of the mot ney due, and
Maker therefore agrees that this late
impractical to ascertain the actual am ount of damages.
Holder, which sum Maker agrees to
charge is a fair and reasonable estimate ‘e of the damages to
pay on demand, Acceptance of any lat e charge will
not constitute a waiver of the default with
exercising any other rights and
respect to the overdue amount, and will not prevent Holder from
remedies available to Holder.
Security.This Note is secured by the Pledge Agreement wherein the Maker
Inc., as collateral in the
pledges their ownership interest in all shares of National Mailing Service,
event of a default hereunder.
Notices. Any notice or other communication required or permitted hereunder
y, by fax
shall be in writing and shall be deemed given and effective (a) when delivered personall
by certified
or by overnight courier service, or (b) three (3) days after the postmark date if mailed
addressed to it at
or registered mail, postage prepaid, return recei pt requested, if to the Holder,
the address set forth in paragraph 1 hereof, and if to Maker, addressed to it at the address stated
to time ina
below its signature, or to such other address as such party may designate from time
written notice to the other party in accordance with the provisions of this paragraph
Legal Fees. If an action is instituted on this Note, the prevailing party is entitled
to attorney’s fees and costs of suit, as the Court may deem proper.
Miscellaneous,
@This Note shall be governed by and construed according to
in
California law. Maker hereby consents to the jurisdiction of any court (state or federal) sitting
Santa Clara County, California.
None of the terms or provisions hereof may be waived, altered,
(b)
modified, or amended except as Holder may consent thereto in a writing duly signed by Holder.
(©) The covenants, terms, and conditions contained in this Note shall
apply to and bind the heirs, successors, executors, administrators and assigns of the parties.
If any provision or any word, term, clause or other part of any
(4)
provision of this Note shall be invalid for any reason, the same shall be ineffective but the
remainder of this Note and the provisions hereof shall not be affected and shall remain in full
force and effect.
oe
@) Maker waives presentment for payment, demand, or notice of
dishonor and nonpayment as to the amount due and payable hereunder.
IN WITNESS WHEREOR, Maket has executed this Note as of the date first above
written.
MAKER:
Angelle
le Kaui
ier Rovinske
f Le
Jeremy Rovinske
3.
EXHIBIT B
PLEDGE AGREEMENT
PLEDGE AGREEMENT
This Pledge Agreement (“Agreement”) is made and effective as of November 1, 2013, by
and betwoen Angelle Poirier Rovenske and Jeremy Rovenske (“Pledgor”) and Mare E. Poirier
and Ann E. Poirier, Trustees of the Poirier Family Revocable Trust dated June 10, 1987
(“Secured Party”).
RECITALS
A Pledgor and Secured Party are parties to that certain Stock Purchase and Sale
Agreement dated November 1, 2013 (the “Purchase Agreement”), regarding the purchase and
sale of shares of common stock of National Mailing Service, Inc., (the “Company”), and pursuant
to which Pledgor has executed a Promissory Note of even date herewith, in the face amount of
Six Hundred Forty Thousand Five Hundred Dollars ($640,500.00) (“Promissory Note”).
B Pursuant to the Purchase Agreement and Promissory Note of even date therewith,
Pledgor purchased certain shares of common stock of the Company from Secured Party,
Cc. As contemplated by the Purchase Agreement, the obligations of Pledgor
thereunder shall be secured by the Pledgor’s pledge of all of their common stock in the Company
to Secured Party, on the terms and conditions set forth herein,
Now, therefore, the parties agree as follows:
AGREEMENT
1 Collateral. Pledgor hereby grants to Secured Party, and Secured Party hereby
accepts, a security interest in all Pledgor’s right, title and interest in and to Sixty-One Thousand
One (61,001) shares of common stock of the Company now owned and hereafter acquired
(“Shares”), including all proceeds thereof as “Collateral” for the faithful performance by Pledgor
of all of his obligations and liabilities under the Purchase Agreement, the Promissory Note, and
this Pledge Agreement.
2 Delivery of the Collateral to Pledge Holder. Upon execution of this Agreement by
Pledgor, the share certificate(s) representing the Collateral now owned by Pledgor shall be
delivered to and retained by Secured Party together with a blank Stock Power executed by
Pledgor in the form of Exhibit A attached. All share certificates subsequently issued in the name
of Pledgor shall also be delivered to Secured Party together with an executed blank Stock Power
unti] such time as all obligations of Pledgor under the Purchase Agreement, the Promissory Note
and this Pledge Agreement have been paid and performed in full.
3 Representations and Warranties of Pledgor. Pledgor represents and warrants that
they are the legal and beneficial owner of the Collateral, free and clear of any liens, charges,
encumbrances, or claims of others.
4 Affirmative Covenants of Pledgor, So long as any Liabilities of Pledgor to
Secured Party remain unpaid or unperformed, Pledgor covenants and agrees that:
(a) Certain Activities and Changes Require Secured Party’s Prior Consent.
a) During the term of this Agreement, all Company budgets, and
budgeted expenditures, shall be expressly approved in advance by Secured Party. Within sixty
(60) days of the end of each fiscal year of Company, Pledgor shall present the Company budget
for the next fiscal year to Secured Party for review and approval by Secured Party, which
approval shall not be unreasonably withheld or delayed.
Q) Pledgor will not undertake or engage in any action or inaction,
without the prior written consent of Secured Party, which consent shall not be unreasonably
withheld or delayed, the result of which would cause Pledgor to (i) sell, assign, transfer or
otherwise dispose of any of the Collateral, except as otherwise set forth herein, (ii) permit any
lien or security interest (other than Secured Party’s security interest) or other charge,
encumbrance, or claim of any third person to attach to any of the Collateral, or permit any of the
Collateral to be levied under any legal process, or permit any lien or security interest or other
charge, encumbrance, or claim of any third person to attach to any of the assets of Company
(iii) borrow or obtain credit in any amount, or execute any guaranty, except for items purchased
from vendors in the ordinary course of Company’s operations; (iv) expend funds for capital
equipment in excess of expenditures expressly budgeted and approved in advance by Secured
Party, or, in the event not budgeted, not to exceed One Thousand Dollars ($1,000.00); (v) sell or
transfer capital assets exceeding One Thousand Dollars ($1,000) in market value in any single
transaction, or exceeding Five Thousand Dollars ($5,000) in any one fiscal year; (vi) execute any
lease of real or personal property; (vii) execute any agreement pursuant to which the Company
would pay or receive property and/or funds totaling in excess of Five Thousand Dollars ($5,000)
except as expressly budgeted and approved in advance by Secured Party; (viii) any dissolution,
liquidation, reorganization, merger, consolidation or sale of al] or substantially all of the asscts of
the Company, any change in the outstanding shares of common stock of the Company by reason
of a stock split, reverse stock split, stock dividend, reclassification, recapitalization, conversion
or exchange of shares or any like capital adjustment; (ix) cause the declaration of a dividend
payable in cash or other property on any of the Collateral; or (x) cause the Company to pay cash
compensation or bonuses in excess of the amounts expressly budgeted and approved in advance
by Secured Party,
(b) Further Assurances. Pledgor from time to time at their own expense, will
promptly execute, acknowledge and deliver all further documents and instruments and take all
further actions that Secured Party may reasonably request which are necessary or desirable in
order to perfect and protect the security interests granted hereby or to enable Secured Party to
exercise and enforce his rights and remedies with respect to any Collateral.
5 Event of Default. Any of the following events shall constitute a default under this
Agreement (“Event of Default”);
ae
@ Failure of the Pledgor to perform Pledgor covenants, obligations or
liabilities of payment or performance under the Purchase Agreement and/or Promissory Note in
accordance with the terms therein; or
(b) Failure to perform, abide by, or breach of any term or condition of this
Agreement,
6. Remedies For Default, In the Event of Default by the Pledgor as stated herein the
Secured Party may elect then or at any time thereafter to:
(a) Sell the Collateral, or a portion thereof as determined below in accordance
with the Califomia Uniform Commercial Code;
(b) Choose to accept the Collateral, or a portion thereof as determined below
in accordance with the California Uniform Commercial Code;
©) Proceed by an action at law or in equity for a judicial foreclosure on the
Collateral, or any portion thereof as determined below in accordance with the California Uniform
Commercial Code; or
(@) Vote the shares held as Collateral hereunder. For such purpose, Pledgor
shall execute and deliver to the Secured Party the original of the Proxy attached hereto as Exhibit
B
7 Retention of the Rights of Ownership, Notwithstanding any other provisions in
this Agreement, unless and until the occurrence of an Event of Default as defined herein, the
Pledgor shall remain the record owner of and may exercise all incidents of ownership relating to
the Collateral, including the right to vote the Shares, not inconsistent with the Secured Party’s
rights, and Pledgor’s obligations, hereunder.
8 Determination of Number of Shares Subject to Foreclosure. Upon the occurrence
of an Event of Default, Secured Party may, me need not, foreclose on the Collateral, or a portion
thereof,
9. Return of Collateral. When all sums due under the Note, and all of Pledgor’s
obligations and liabilities under the Guaranty Agreement are satisfied, this Agreement shall
terminate and the share certificate(s) representing the Collateral, Stock Power(s) and Proxy shall
be returned to Pledgor by the Secured Party.
10. Attorney-in-Fact, Secured Party, or Secured Party’s successors and assigns, are
hereby appointed attorney-in-fact, with full power of substitution, of Pledgor or his successors
and assigns for the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instruments which the attorney-in-fact may deem necessary or advisable
to accomplish the purposes hereof. The appointment as attorney-in-fact is irrevocable and
coupled with an interest.
3.
ll. Attorneys’ Fees. Should any litigation, arbitration or mediation (collectively
“Proceeding”) commence between the parties conceming or arising out of this Agreement, or the
rights and duties of either hereto, whether it be an action for damages or equitable or declaratory
relief, the prevailing party in such Proceeding shall be entitled to reasonable attorneys’ fees,
including attorneys’ fees incurred in post-judgment motions and collection actions, enforcing any
judgment granted therein and bankruptcy litigation as an element of such party’s costs in addition
to other relief as may be granted by the court, arbitrator, or mediator, as the case may be, whether
or not such action is prosecuted to judgment. Any judgment or order entered in such Proceeding
shall contain a specific provision providing for the recovery of attorneys’ fees and costs incurred
in enforcing such judgment.
12, Cumulative Rights and Remedies. All rights and remedies of Secured Party under
this Agreement shall be cumulative and shall be in addition to all other rights and remedies
provided by law or in equity.
13. Successors. This Agreement shall inure to the benefit of and be binding on the
parties hereto, their heirs, representatives, executors, administrators, successors and assigns,
14. Further Assurances. Each party agrees to perform any further acts and execute
and deliver any documents that may be reasonably necessary to carry out the transactions and
provisions contemplated herein,
15. Governing Law, This Agreement and the rights and obligations of the parties
shall be interpreted and enforced pursuant to the laws of the State of California, but without
regard to those provisions in the law which construe ambiguities against the drafter.
16. Entire Agreement; Amendment; Severability. This Agreement represents the
entire and integrated agreement of the parties with regard to the subject matter herein. There are
no statements, representations, inducements or agreements made by or between the parties hereto
with regard to the guaranty except as set forth herein. No modification, change or amendment to
this Agreement shall be valid except by way of a writing executed by the parties hereto. If any
provision of this Agreement or the application thereof to any person shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application of such
provision to other persons shall not be affected thereby and shall remain in full force and effect.
17, Legal Representation. The provisions of this Agreement were negotiated by all the
parties and this Agreement shall be deemed to have been drafted by all the parties. Each of the
Parties to this Agreement understands that Wealth and Estate Planning Legal Services, Inc. is
acting as legal counsel to Secured Party. Each of the Parties acknowledges that Wealth and
Estate Planning Legal Services, Inc. has represented in the past and currently represents the
Secured Party in other matters. Pledgor hereby acknowledges that they have been advised ta
seek separate legal counsel] with respect to the effects and interpretation of this Agreement before
executing this Agreement and that it has been either advised by legal counsel of its own choosing
as to the significant effect which executing this Agreement has on its rights or has freely chosen
not to seek such advice. The Parties consent to Wealth and Estate Planning Legal Services, Inc.
-4-
representing the Secured Party on the transaction contemplated herein and other
matters and
waive any conflicts concerning the same.
18, Non Waiver of Rights. Except as otherwise expressly set forth herein, no
provision of this Agreement or the rights granted hereunder, can be waived in whole or part,
nor
can Pledgor be released from Pledgor’s obligations hereunder except by a writing signed
by
Secured Party,
PLEDGOR;:
gle
Angelle trier Re inske
leremy Rovinske
SECURED PARTY;
Poirier Family Revocable Trust
By: <) Cur ]}
. Poirier, T; ee
By: E faire. Priustin
Ann E, Poirier, Trustee
-5-
EXHIBIT A
STOCK POWER
[Attached]
STOCK POWER
For value received the undersigned, pursuant to the terms of that Pledge Agreement
dated November 1, 2013 by and between the undersigned and Marc E, Poirier and Ann E.
Poirier, Trustees of the Poirier Family Revocable Trust dated June 10, 1987, hereby transfers
to Marc E. Poirier and Ann E. Poirier, Trustees of the Poirier Family Revocable Trust dated
June 10, 1987, Sixty-One Thousand One (61,001) shares of common stock of National
Mailing Service, Inc., a California corporation (“Company”), represented by Certificate
No. , and does hereby appoint , as transfer agent to
transfer the shares on
Preview
Perry J. Woodward (State Bar No. 183876) Electronically Filed pwoodward@hopkinscarley.com by Superior Court of CA, Liam J. O’Connor (State Bar No. 246638) County of Santa Clara, loconnor@hopkinscarley.com on 5/20/2020 5:49 PM HOPKINS & CARLEY A Law Corporation Reviewed By: P. Lai The Letitia Building Case #19CV354297 70 S First Street Envelope: 4358828 San Jose, CA 95113-2406 mailing address: P.O. Box 1469 San Jose, CA 95109-1469 Telephone: (408) 286-9800 Facsimile: (408) 998-4790 Attorneys for Defendants Marc E. Poirier and Anne E. Poirier, 10 trustees of The Poirier Family Revocable Trust Dated June 10, 1987 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SANTA CLARA 14 JEREMY ROVINSKE, CASE NO. 19CV354297 i Plaintiff, REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO COMPEL 16 Vv. FURTHER RESPONSES TO THE POIRIERS’ DEMANDS FOR 17 MARC E. POIRIER AND ANNE E. PRODUCTION OF DOCUMENTS (SET POIRIER trustees of the Poirier Family ONE), REQUESTS FOR ADMISSION (SET 18 Revocable Trust Dated June 10, 1987, ONE), FORM INTERROGATORIES (SET et al., TWO); REQUEST FOR MONETARY 19 SANCTIONS Defendants. 20 Date: Time: 21 Dept.: Judge: 22 File Date: September 4, 2019 23 AND RELATED CROSS-ACTION Trial Date: Not Set 24 25 26 27 28 HopKINs & CARLEY 697\3521212.1 ATTORNEYS AT LAW REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY SAN JOSE #PALO ALTO RESPONSES AND REQUEST FOR MONETARY SANCTIONS Pursuant to California Evidence Code section 452(d), Defendants and Cross- Complainants Marc E. Poirier and Anne E. Poirier (the “Poiriers”) hereby request that this court take judicial notice of the following court and official records in connection with the Poiriers’ Motion to Compel Further Responses to the Poiriers’ Demands for Production (Set One), Requests for Admission (Set One), and Form Interrogatories (Set Two), and For Monetary Sanctions against Plaintiff and Cross-Defendant Jeremy Rovinske (“Rovinske”) and his counsel 1 Rovinske’s September 4, 2019 Complaint against the Poiriers in the above referenced action, a true and correct copy of which is attached hereto as Exhibit 1. Dated: May 20, 2020 HOPKINS & CARLEY A Law Corporation 10 11 By 12 Perry J. oddward Liam J. O’Connor 13 Attorneys for Defendants Marc E. Poirier and Anne E. Poirier, 14 trustees of The Poirier Family Revocable Trust Dated June 10, 1987 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hopkins & CARLEY 697\3521212.1 -2- ATTORNEYSAT LAW REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY SAW JOSE #PALO ALTO RESPONSES AND REQUEST FOR MONETARY SANCTIONS E-FILED 9/4/2019 11:08 AM LAW OFFICES OF Clerk of Court JAMES M. SULLIVAN, INC Superior Court of CA, ATTORNEYS AT LAW 225 N. SANTA CRUZ AVENUE County of Santa Clara LOS GATOS, CALIFORNIA 95030-7275 19CV354297 ‘TELEPHONE (408) 395-3837 Reviewed By: M Vu FAX (408) 354-6040 STATE BAR #047178 Plaintiff, JEREMY ROVINSKE Attorneys for SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA 10 JEREMY ROVINSKE, CASE NO. 19CV354297 ul 12 Plaintiff, COMPLAINT FOR SPECIFIC PERFORMANCE 12 vs. (UNLIMITED CIVIL CASE) 14 MARC E. POIRIER and ANN E. POIRIER, ) 15 TRUSTEES OF THE POIRIER FAMILY) REVOCABLE TRUST DATED JUNE 10, ) 16 1987, and DOES I through V, Inclusive, ) 17 ) Defendants. ) 18 ) 19 Plaintiff alleges: 20 1. Defendants are and at all times herein mentioned were residents of Santa Clara ai County, California. 22 2. Plaintiffis ignorant of the true names and capacities of Defendants sued herein 23 24 as DOES 1 to 5, Inclusive and therefore sues these Defendants by such fictitious names. Plaintiff 25 will amend this Complaint to allege their true names and capacities when ascertained. 26 27 28 COMPLAINT FOR MONEY 3. On or about November 1, 2013 at Morgan Hill, California Plaintiff and his wife, ANGELLE POIRIER ROVINSKE, and Defendants entered into a written agreement, a copy of which is attached as Exhibit "A" and incorporated by reference for the purchase by Plaintiff and his wife and sale by Defendants of 61,000 shares of common stock of National Mailing Service, Inc., a California Corporation, for the total sale price of Six Hundred Forty Thousand Five Hundred ($640,500) Dollars to be paid pursuant to the terms of that certain Promissory Note attached to the Stock Purchase and Sale Agreement which Note was secured by a Pledge Agreement also attached to the Stock Purchase and Sale Agreement, 10 4. The consideration set forth in the agreement was the fair and reasonable value ll yw 12 of the subject shares of common stock at the time the agreement was entered into and the ak 8 contract is, as to Defendants, just and reasonable. Plaintiff's wife, ANGELLE POIRIER Sen $2 bn Z5 go 14 ROVINSKE has declined to join Plaintiff in this action. Plaintiff and his wife, ANGELLE 15 g POIRIER ROVINSKE, as co-owners of the 61,000 shares of common stock purchased from 16 gs Defendants pursuant to the terms of the agreement, each effectively own one-half of said shares, 8 17 resulting in Plaintiff having equitable and legal ownership as to one-half of the shares purchased, 18 19 or 30,500 shares of common stock of National Mailing Service, Inc. 20 5. Asa result of a non-payment event occurring with regard to performance of 21 the terms and conditions of the installment payments due under the Promissory Note made part 22 of the Stock Purchase and Sale Agreement, Defendants, on or about July 26, 2019 declared a 23 default to occur and demanded payment of the full unpaid principal then due and owing under 24 the Promissory Note and all interest then accrued. Defendants at such time declared that the 25 26 amount of the unpaid obligation left to be satisfied was Two Hundred Eleven Thousand Seven 27 Hundred Seventy-Four and 32/100 ($211,774.32) Dollars as of July 1, 2019 together with annual 28 COMPLAINT FOR MONEY interest of 3.32% from that date of Nineteen and 26/100 ($19.26) Dollars per day. A copy of Defendants’ demand is attached hereto as Exhibit "B" and made a part hereof. 6. Asa result of the Declaration of Default, Plaintiff on or about August 9, 2019 tendered payment to Defendants of the demand amounts and arranged for delivery to Defendants on August 9, 2019 of certified funds in the form of two bank checks payable to the POIRIER FAMILY REVOCABLE TRUST in the amount of Two Hundred Eleven Thousand Seven Hundred Seventy-Four and 32/100 ($211,774.32) Dollars as the unpaid balance due of principal and interest as of July 1, 2019, together with the additional accrued interest payment due through 10 August 9, 2019 as demanded in the amount of Seven Hundred Seventy and 51/100 ($770.51) M1 wa 12 Dollars. Asa result of this delivery of full tender of payment, all obligations and liabilities under 2h & 13 the Pledge Agreement securing payment of the Promissory Note made part of the Purchase and Zo 14 ath Sale Agreement are deemed satisfied. Pursuant to Paragraph 9 of said Pledge Agreement 15 ss gS payment of the balance due under the Promissory Note results in the termination of the Pledge 2 g 16 9S ag Agreement and Defendants are required under that Paragraph 9 to return to Plaintiff and his wife 17 the share certificates representing the 61,000 shares of stock purchased by Plaintiff and his wife 18 19 that were pledged as collateral, and in addition Defendants were required to return to Plaintiff 20 and his wife the original stock power and proxy, both dated December 7, 2013, which 21 instruments are incorporated and made part of the Pledge Agreement securing payment of the 22 Promissory Note under the Stock Purchase and Sale Agreement. 23 7. With tender of delivery of final payment due to Defendants pursuant to their 24 demand, Plaintiff and his wife have performed all conditions, covenants and promises required 25 26 by Plaintiff on his part, to be performed in accordance with the terms and conditions of the Stock 27 Purchase and Sale Agreement, Note and Pledge Agreement, and Plaintiff has demanded on his 28 part release and delivery of certificates or other evidence of unencumbered ownership of COMPLAINT FOR MONEY Plaintiff's one-half interest in the 61,000 shares purchased by Plaintiff and his wife, or 30,500 shares of common stock of National Mailing Service, Inc. 8. Defendants have failed and refused, and continue to fail and refuse, to perform the conditions of the Contract and Pledge Agreement on their part in that they refuse to return to Plaintiff share certificates representing his ownership of the 30,500 shares of stock held as collateral, and surrender the original stock power and proxy dated December 7, 2013 in termination of the Pledge Agreement. 9. For the reasons heretofore stated, Plaintiffhas no adequate legal remedy in that 10 damages, if awarded, can not be properly ascertained since there is no fixed market value for the ll shares of stock and damages will be inadequate to compensate Plaintiff for the detriment suffered aR 12 a8 a5 be 13 by him. ne g5 a 14 10. The subject Stock Purchase and Sale Agreement and Pledge Agreement 15 =< provide that in the event of any litigation between the parties arising out of the agreement or the 16 96 rights and duties of the parties thereto, the prevailing party in such proceedings shall be entitled “4 17 to reasonable attorney's fees. 18 19 WHEREFORE, Plaintiff prays Judgment against Defendants as follows: 20 1 That Defendants be ordered to execute and deliver to Plaintiff a sufficient 21 conveyance of the shares of common stock described herein together with return of the stock 22 power and proxy due on termination of the Pledge Agreement under which the subject shares of 23 stock were retained by Defendants as collateral; 24 2. For reasonable attorney's fees accordingly to proof; 25 26 3. For cost of suit herein incurred; and 7 28 COMPLAINT FOR MONEY 4, For such other and further relief as the Court may deem proper. paren. 9/4/12 JAMES SULLIVAN, Attorn for Plaintiff 10 ll 4 4 hz a8 Ss: esa Bs 3 aI 14 1S a 16 gS ma 7 18 19 20 21 22 23 24 25 26 27 28 f\wp8\pleading\rovinskeomp COMPLAINT FOR MONEY VERIFICATION (446, 2015.5 C.C.P,] STATE OF CALIFORNIA ) COUNTY OF SANTA CLARA ) document Jam the Plaintiff in the above entitled action; I have read the foregoing true of my own and know the contents thereof; and I certify (or declare) that the same is 10 and knowledge, except as to those matters which are herein stated upon my information or belief, Ml as to those matters, 1 believe to be true. 4 8 12 88 I certify (or declare) under penalty of perjury, that the foregoing is true and a, ab 13 ei <& 14 correct. ze ss a: 15 Executed on_S#¥7_3 2019, at Los Gatos, California. 16 9S “8 17 é 18 JE MY ROVINSKE 19 20 21 22 23 24 25 26 27 28 COMPLAINT FOR MONEY STOCK PURCHASE AND SALE AGREEMENT This Stock Purchase and Sale Agreement (“Agreement”) is effective November 1, 2013 (“Effective Date”), and is made by and between Marc E. Poirier and Ann E. Poirier, Trustees of the Poirier Family Revocable Trust dated June 10, 1987 (“Seller”) and Angelle Poirier Rovinske and Jeremy Rovinske, husband and wife (“Purchaser”). RECITALS A. Seller owns Sixty-One Thousand (61,000) shares (‘‘Seller’s Shares”) of the common stock of National Mailing Service, Inc., a California corporation (“Company”). B. Seller wishes to sell to Purchaser and Purchaser wishes to purchase from Seller, all of Seller’s right, title, and interest in Seller’s Shares, on the terms and conditions set forth in this Agreement. NOW, THEREFORE, the parties agree as follows: AGREEMENT 1. Purchase Price. The price per share shall be Ten and 50/100 Dollars ($10.50). The total purchase price for the Seller’s Shares shall be Six Hundred Forty Thousand Five Hundred Dollars ($640,500.00), to be paid pursuant to the Promissory Note attached hereto as Exhibit A, secured by a Pledge Agreement attached hereto as Exhibit B. eller’s resentations and Wai tie: Seller represents and warrants that Seller owns the Seller's Shares to be sold to Purchaser under this Agreement free and clear of all liens, encumbrances, security agreements, options, claims, charges, and restrictions. 3 “AS IS” Purchase. Purchaser acknowledges that, except as provided in paragraph 2, the Seller’s Shares are being sold “AS IS, WHERE IS,” with no representations or warranties of Seller with regard to Company or its shares, except as specified in this Agreement. 4. Closing Date. The sale of shares hereunder will take place at the offices of Company on or before November 1, 2013, or at such other time and place as the parties may agree to in writing (the “Closing”). 5 Seller’s Obligations at Closing. At the Closing, and subject to the terms and conditions of the Pledge Agreement, Seller shall deliver to Purchaser a certificate representing the Seller’s Shares, registered in the name of Seller, duly endorsed by Seller for transfer or accompanied by an assignment of the Seller’s Shares duly executed by Seller. 6. Purchaser's Obligations at Closing. At the Closing, Purchaser shall deliver to Seller, the promissory note payable to Seller, in the amount of the Purchase Price, and the Pledge Agreement fully executed by the Purchaser with the written acceptance and acknowledgment of Company to the transfer of the Seller’s Shares to Purchaser. 1 EX#/B/T ‘A 7. Conditions to Closing. This Agreement is subject to the prior execution and delivery of this Purchase and Sale Agreement, the Promissory Note and the Pledge Agreement. 8. No Assignment: Binding on Successors. This Agreement shall be binding on, and shall inure to the benefit of, the parties hereto and their respective heirs, legal representatives, successors, and assigns. No party may assign its obligations hereunder without each other party’s prior written consent. 9. Attorneys’ Fees. Should suit or arbitration be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees to be fixed by the court or arbitrator (including, without limitation, costs, expenses and fees on any appeal), 10, Notices. Any notice or other communication required or permitted by one party to the other shall be sent by first class mail, personal delivery, or facsimile to such party at the addresses shown at the end of this Agreement. 11. Governing Law. This Agreement shall be construed in accordance with the laws of the State of California. 12, Counterpart Execution. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 13, Further Assurance. Each party agrees to cooperate with the other party and to execute such additional instruments and documents as may be reasonably necessary or proper in order to carry out the provisions of this Agreement. 14, Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. 15. Negotiated Transaction. The provisions of this Agreement were negotiated by all the parties and this Agreement shall be deemed to have been drafted by all the parties. Each of the Parties to this Agreement understands that Wealth and Estate Planning Legal Services, Inc. is acting as legal counsel to Seller. Each of the Parties acknowledges that Wealth and Estate Planning Legal Services, Inc. has represented in the past and currently represents the Seller in other matters. Buyer hereby acknowledges that they have been advised to seek separate legal counsel with respect to the effects and interpretation of this Agreement before executing this Agreement and that it has been cither advised by legal counsel of its own choosing as to the significant effect which executing this Agreement has on its rights or has freely chosen not to seek such advice. The Parties consent to Wealth and Estate Planning Legal Services, Inc. representing the Seller on the transaction contemplated herein and other matters and waive any conflicts concerning the same. 16, Survival of Representations and Warranties. All representations, warranties, covenants, and agreements of the parties contained in this Agreement, or in any instrument, certificate, or other writing provided for in it, shall survive the Closing Date. 2 IN WITNESS WHEREOF, the parties have executed this Agreement on the date written above. SELLER: PURCHASER PoiriexFamily cable Trust Maye E. Poirier, Trustee . = £5 o— By Ann E, Poirier, Trustee Jeremy Rovinske Address: 18330 Crystal Drive Address; 7 N) Central Ave Morgan Hill, CA_95037 Canpbelt Ch SOP - EXHIBIT A PROMISSORY NOTE PROMISSORY NOTE San Jose, CA. Principal Amount: $640,500 3.320% Date: November 1, 2013 Interest Rate: Obligation. By this Promissory Note (the “Note”) effective as of November 1, 2013 (the “Effective Date”), Angelle Poirier Rovenske and Jeremy Rovenske (“Maker”), jointly and E, Poirier and Ann severally, prot mise to pay to Mare E. Poirier, Trustees of the Poirier Family Revocable Trust dated June 10, 1987 (“Holder”), at 18330 Crystal Drive, Morgan Hill, CA 94037, the p rincipal sum of Six Hundred Forty Thousand Five Hundred Dollars ($640,500.00)(the “Principal Sum”), together with interest thereon at the rate provided below from the Effective Date until paid. Interest, This Note shall accrue interest on the Principal Balance from time to time outstanding at the rate of Three and Thirty-Two hundredths percent (3.320%) per annum. Payment. The Principal Sum and all accrued interest will be paid in lawful money in of the United States of America as follows: principal and interest will be due and payable Dollars equal monthly installments of Six Thousand Two Hundred Seventy-Nine and 77/100 g on the Ist day of each month ($6,279.77), commencing December 1, 2013, and continuin Sum and all thereafter until November 1, 2023, at which time the balance of the Principal accrued interest thereon will be paid-in-full. Prepayment. Maker reserves the right to prepay all or any part of this Note without penalty, and interest will immediately cease on any amount so prepaid. Should Maker make any payments on this Note prior to the due date, any payment made will be credited first to any accrued but unpaid interest on the principal and then to the principal balance, and interest shall cease on the principal so credited. Default. Upon the occurrence of an Event of Default, as defined below, the entire unpaid principal sum of this Note and all accrued interest thereon at once becomes due and payable without notice, at the option of Holder. Failure to exercise such option will not constitute a waiver of the right to exercise it in the event of any subsequent default. For the purposes of this Note, each of the following constitutes an Event of Default under this Note: (a) Maker fails to make payment of any installment of principal or interest under this Note as and when due; (b) Maker becomes insolvent, has a receiver or trustee of all or any part of Maker’s property appointed, makes an assignment of assets for the benefit of Maker’s creditors, files or has filed against it a petition in bankruptcy; or (c) Maker is dissolved, liquidated or terminated. (d) Any ownership interest of Maker existing as of the date of this Note is transferred without the prior written consent of Holder. His Any breach of or default under the Pledge Agreement securing (e) payment of this Note. any payment of interest or Late Fees. Jf Holder fails to receive from Maker by way of damages of five percent (5%) of principal required on the due date, then a late charge due and payable. Maker recognizes the amount of each unpaid installment wi Il be immediately expenses, in Holde r incurring additional that failure to make payments when due will result , in servicing this Note, and in including, without limitation, collection and accounting charges that it would be extremely difficult and loss to Holder of the use of the mot ney due, and Maker therefore agrees that this late impractical to ascertain the actual am ount of damages. Holder, which sum Maker agrees to charge is a fair and reasonable estimate ‘e of the damages to pay on demand, Acceptance of any lat e charge will not constitute a waiver of the default with exercising any other rights and respect to the overdue amount, and will not prevent Holder from remedies available to Holder. Security.This Note is secured by the Pledge Agreement wherein the Maker Inc., as collateral in the pledges their ownership interest in all shares of National Mailing Service, event of a default hereunder. Notices. Any notice or other communication required or permitted hereunder y, by fax shall be in writing and shall be deemed given and effective (a) when delivered personall by certified or by overnight courier service, or (b) three (3) days after the postmark date if mailed addressed to it at or registered mail, postage prepaid, return recei pt requested, if to the Holder, the address set forth in paragraph 1 hereof, and if to Maker, addressed to it at the address stated to time ina below its signature, or to such other address as such party may designate from time written notice to the other party in accordance with the provisions of this paragraph Legal Fees. If an action is instituted on this Note, the prevailing party is entitled to attorney’s fees and costs of suit, as the Court may deem proper. Miscellaneous, @This Note shall be governed by and construed according to in California law. Maker hereby consents to the jurisdiction of any court (state or federal) sitting Santa Clara County, California. None of the terms or provisions hereof may be waived, altered, (b) modified, or amended except as Holder may consent thereto in a writing duly signed by Holder. (©) The covenants, terms, and conditions contained in this Note shall apply to and bind the heirs, successors, executors, administrators and assigns of the parties. If any provision or any word, term, clause or other part of any (4) provision of this Note shall be invalid for any reason, the same shall be ineffective but the remainder of this Note and the provisions hereof shall not be affected and shall remain in full force and effect. oe @) Maker waives presentment for payment, demand, or notice of dishonor and nonpayment as to the amount due and payable hereunder. IN WITNESS WHEREOR, Maket has executed this Note as of the date first above written. MAKER: Angelle le Kaui ier Rovinske f Le Jeremy Rovinske 3. EXHIBIT B PLEDGE AGREEMENT PLEDGE AGREEMENT This Pledge Agreement (“Agreement”) is made and effective as of November 1, 2013, by and betwoen Angelle Poirier Rovenske and Jeremy Rovenske (“Pledgor”) and Mare E. Poirier and Ann E. Poirier, Trustees of the Poirier Family Revocable Trust dated June 10, 1987 (“Secured Party”). RECITALS A Pledgor and Secured Party are parties to that certain Stock Purchase and Sale Agreement dated November 1, 2013 (the “Purchase Agreement”), regarding the purchase and sale of shares of common stock of National Mailing Service, Inc., (the “Company”), and pursuant to which Pledgor has executed a Promissory Note of even date herewith, in the face amount of Six Hundred Forty Thousand Five Hundred Dollars ($640,500.00) (“Promissory Note”). B Pursuant to the Purchase Agreement and Promissory Note of even date therewith, Pledgor purchased certain shares of common stock of the Company from Secured Party, Cc. As contemplated by the Purchase Agreement, the obligations of Pledgor thereunder shall be secured by the Pledgor’s pledge of all of their common stock in the Company to Secured Party, on the terms and conditions set forth herein, Now, therefore, the parties agree as follows: AGREEMENT 1 Collateral. Pledgor hereby grants to Secured Party, and Secured Party hereby accepts, a security interest in all Pledgor’s right, title and interest in and to Sixty-One Thousand One (61,001) shares of common stock of the Company now owned and hereafter acquired (“Shares”), including all proceeds thereof as “Collateral” for the faithful performance by Pledgor of all of his obligations and liabilities under the Purchase Agreement, the Promissory Note, and this Pledge Agreement. 2 Delivery of the Collateral to Pledge Holder. Upon execution of this Agreement by Pledgor, the share certificate(s) representing the Collateral now owned by Pledgor shall be delivered to and retained by Secured Party together with a blank Stock Power executed by Pledgor in the form of Exhibit A attached. All share certificates subsequently issued in the name of Pledgor shall also be delivered to Secured Party together with an executed blank Stock Power unti] such time as all obligations of Pledgor under the Purchase Agreement, the Promissory Note and this Pledge Agreement have been paid and performed in full. 3 Representations and Warranties of Pledgor. Pledgor represents and warrants that they are the legal and beneficial owner of the Collateral, free and clear of any liens, charges, encumbrances, or claims of others. 4 Affirmative Covenants of Pledgor, So long as any Liabilities of Pledgor to Secured Party remain unpaid or unperformed, Pledgor covenants and agrees that: (a) Certain Activities and Changes Require Secured Party’s Prior Consent. a) During the term of this Agreement, all Company budgets, and budgeted expenditures, shall be expressly approved in advance by Secured Party. Within sixty (60) days of the end of each fiscal year of Company, Pledgor shall present the Company budget for the next fiscal year to Secured Party for review and approval by Secured Party, which approval shall not be unreasonably withheld or delayed. Q) Pledgor will not undertake or engage in any action or inaction, without the prior written consent of Secured Party, which consent shall not be unreasonably withheld or delayed, the result of which would cause Pledgor to (i) sell, assign, transfer or otherwise dispose of any of the Collateral, except as otherwise set forth herein, (ii) permit any lien or security interest (other than Secured Party’s security interest) or other charge, encumbrance, or claim of any third person to attach to any of the Collateral, or permit any of the Collateral to be levied under any legal process, or permit any lien or security interest or other charge, encumbrance, or claim of any third person to attach to any of the assets of Company (iii) borrow or obtain credit in any amount, or execute any guaranty, except for items purchased from vendors in the ordinary course of Company’s operations; (iv) expend funds for capital equipment in excess of expenditures expressly budgeted and approved in advance by Secured Party, or, in the event not budgeted, not to exceed One Thousand Dollars ($1,000.00); (v) sell or transfer capital assets exceeding One Thousand Dollars ($1,000) in market value in any single transaction, or exceeding Five Thousand Dollars ($5,000) in any one fiscal year; (vi) execute any lease of real or personal property; (vii) execute any agreement pursuant to which the Company would pay or receive property and/or funds totaling in excess of Five Thousand Dollars ($5,000) except as expressly budgeted and approved in advance by Secured Party; (viii) any dissolution, liquidation, reorganization, merger, consolidation or sale of al] or substantially all of the asscts of the Company, any change in the outstanding shares of common stock of the Company by reason of a stock split, reverse stock split, stock dividend, reclassification, recapitalization, conversion or exchange of shares or any like capital adjustment; (ix) cause the declaration of a dividend payable in cash or other property on any of the Collateral; or (x) cause the Company to pay cash compensation or bonuses in excess of the amounts expressly budgeted and approved in advance by Secured Party, (b) Further Assurances. Pledgor from time to time at their own expense, will promptly execute, acknowledge and deliver all further documents and instruments and take all further actions that Secured Party may reasonably request which are necessary or desirable in order to perfect and protect the security interests granted hereby or to enable Secured Party to exercise and enforce his rights and remedies with respect to any Collateral. 5 Event of Default. Any of the following events shall constitute a default under this Agreement (“Event of Default”); ae @ Failure of the Pledgor to perform Pledgor covenants, obligations or liabilities of payment or performance under the Purchase Agreement and/or Promissory Note in accordance with the terms therein; or (b) Failure to perform, abide by, or breach of any term or condition of this Agreement, 6. Remedies For Default, In the Event of Default by the Pledgor as stated herein the Secured Party may elect then or at any time thereafter to: (a) Sell the Collateral, or a portion thereof as determined below in accordance with the Califomia Uniform Commercial Code; (b) Choose to accept the Collateral, or a portion thereof as determined below in accordance with the California Uniform Commercial Code; ©) Proceed by an action at law or in equity for a judicial foreclosure on the Collateral, or any portion thereof as determined below in accordance with the California Uniform Commercial Code; or (@) Vote the shares held as Collateral hereunder. For such purpose, Pledgor shall execute and deliver to the Secured Party the original of the Proxy attached hereto as Exhibit B 7 Retention of the Rights of Ownership, Notwithstanding any other provisions in this Agreement, unless and until the occurrence of an Event of Default as defined herein, the Pledgor shall remain the record owner of and may exercise all incidents of ownership relating to the Collateral, including the right to vote the Shares, not inconsistent with the Secured Party’s rights, and Pledgor’s obligations, hereunder. 8 Determination of Number of Shares Subject to Foreclosure. Upon the occurrence of an Event of Default, Secured Party may, me need not, foreclose on the Collateral, or a portion thereof, 9. Return of Collateral. When all sums due under the Note, and all of Pledgor’s obligations and liabilities under the Guaranty Agreement are satisfied, this Agreement shall terminate and the share certificate(s) representing the Collateral, Stock Power(s) and Proxy shall be returned to Pledgor by the Secured Party. 10. Attorney-in-Fact, Secured Party, or Secured Party’s successors and assigns, are hereby appointed attorney-in-fact, with full power of substitution, of Pledgor or his successors and assigns for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instruments which the attorney-in-fact may deem necessary or advisable to accomplish the purposes hereof. The appointment as attorney-in-fact is irrevocable and coupled with an interest. 3. ll. Attorneys’ Fees. Should any litigation, arbitration or mediation (collectively “Proceeding”) commence between the parties conceming or arising out of this Agreement, or the rights and duties of either hereto, whether it be an action for damages or equitable or declaratory relief, the prevailing party in such Proceeding shall be entitled to reasonable attorneys’ fees, including attorneys’ fees incurred in post-judgment motions and collection actions, enforcing any judgment granted therein and bankruptcy litigation as an element of such party’s costs in addition to other relief as may be granted by the court, arbitrator, or mediator, as the case may be, whether or not such action is prosecuted to judgment. Any judgment or order entered in such Proceeding shall contain a specific provision providing for the recovery of attorneys’ fees and costs incurred in enforcing such judgment. 12, Cumulative Rights and Remedies. All rights and remedies of Secured Party under this Agreement shall be cumulative and shall be in addition to all other rights and remedies provided by law or in equity. 13. Successors. This Agreement shall inure to the benefit of and be binding on the parties hereto, their heirs, representatives, executors, administrators, successors and assigns, 14. Further Assurances. Each party agrees to perform any further acts and execute and deliver any documents that may be reasonably necessary to carry out the transactions and provisions contemplated herein, 15. Governing Law, This Agreement and the rights and obligations of the parties shall be interpreted and enforced pursuant to the laws of the State of California, but without regard to those provisions in the law which construe ambiguities against the drafter. 16. Entire Agreement; Amendment; Severability. This Agreement represents the entire and integrated agreement of the parties with regard to the subject matter herein. There are no statements, representations, inducements or agreements made by or between the parties hereto with regard to the guaranty except as set forth herein. No modification, change or amendment to this Agreement shall be valid except by way of a writing executed by the parties hereto. If any provision of this Agreement or the application thereof to any person shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provision to other persons shall not be affected thereby and shall remain in full force and effect. 17, Legal Representation. The provisions of this Agreement were negotiated by all the parties and this Agreement shall be deemed to have been drafted by all the parties. Each of the Parties to this Agreement understands that Wealth and Estate Planning Legal Services, Inc. is acting as legal counsel to Secured Party. Each of the Parties acknowledges that Wealth and Estate Planning Legal Services, Inc. has represented in the past and currently represents the Secured Party in other matters. Pledgor hereby acknowledges that they have been advised ta seek separate legal counsel] with respect to the effects and interpretation of this Agreement before executing this Agreement and that it has been either advised by legal counsel of its own choosing as to the significant effect which executing this Agreement has on its rights or has freely chosen not to seek such advice. The Parties consent to Wealth and Estate Planning Legal Services, Inc. -4- representing the Secured Party on the transaction contemplated herein and other matters and waive any conflicts concerning the same. 18, Non Waiver of Rights. Except as otherwise expressly set forth herein, no provision of this Agreement or the rights granted hereunder, can be waived in whole or part, nor can Pledgor be released from Pledgor’s obligations hereunder except by a writing signed by Secured Party, PLEDGOR;: gle Angelle trier Re inske leremy Rovinske SECURED PARTY; Poirier Family Revocable Trust By: <) Cur ]} . Poirier, T; ee By: E faire. Priustin Ann E, Poirier, Trustee -5- EXHIBIT A STOCK POWER [Attached] STOCK POWER For value received the undersigned, pursuant to the terms of that Pledge Agreement dated November 1, 2013 by and between the undersigned and Marc E, Poirier and Ann E. Poirier, Trustees of the Poirier Family Revocable Trust dated June 10, 1987, hereby transfers to Marc E. Poirier and Ann E. Poirier, Trustees of the Poirier Family Revocable Trust dated June 10, 1987, Sixty-One Thousand One (61,001) shares of common stock of National Mailing Service, Inc., a California corporation (“Company”), represented by Certificate No. , and does hereby appoint , as transfer agent to transfer the shares on