exv10w2



 





Exhibit 10.2




SHARE TENDER AGREEMENT




     This
SHARE TENDER AGREEMENT (this “Agreement”), is dated
as of November 28, 2007 (this
“Agreement”), by and among American Greetings Corporation, an Ohio corporation
(“Parent”), Photo Merger Corp., a Washington corporation and a wholly owned subsidiary of
Parent (“Subcorp”), PhotoWorks, Inc., a Washington corporation (“PhotoWorks”), and
California Pacific LLC, in its capacity as shareholder of PhotoWorks (the “Shareholder”).



W I T N E S S E T H




     WHEREAS, as of the date hereof, the Shareholder is the beneficial owner of the number of
Common Shares (as defined below) set forth opposite the name of the Shareholder on Schedule
1 hereto (including any Common Shares acquired by the Shareholder after the execution of this
Agreement, collectively, the “Owned Shares”); and



     WHEREAS, Parent, Subcorp, and PhotoWorks are simultaneously with the execution of this
Agreement entering into an Agreement and Plan of Merger, dated as of the date of this Agreement (as
it may be amended from time to time in accordance with its terms, the “Merger Agreement”),
providing for, among other things, Subcorp to commence a cash tender offer (the “Offer”) to
purchase all of the issued and outstanding common shares, par value $0.01, of PhotoWorks (the
“Common Shares”), followed by the subsequent merger of Subcorp with and into PhotoWorks
with PhotoWorks surviving the merger, on the terms and subject to the conditions set forth in the
Merger Agreement (capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Merger Agreement); and



     WHEREAS, as a condition and inducement to Parent’s and Subcorp’s willingness to enter into and
perform their obligations under the Merger Agreement, Parent and Subcorp have required that the
Shareholder agree, and the Shareholder has agreed, (i) to tender in the Offer (and not withdraw)
all of the Shareholders’ Owned Shares, whether upon the exercise of options or warrants, conversion
of convertible securities or otherwise, and any other voting securities of PhotoWorks (whether
acquired prior to or after the execution of this Agreement) that are beneficially owned by the
Shareholder, and (ii) that in the event that a vote of the shareholders of PhotoWorks is required
in furtherance of the Merger Agreement or the transactions contemplated thereby, including the
Merger, the Shareholder will vote all of the Owned Shares in favor of any such proposal, and (iii)
to take the other actions described in this Agreement; and



     WHEREAS, the Shareholder desires to express its support for the Merger Agreement and the
transactions contemplated thereby, including the Offer and the Merger.



     NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration
given to each party hereto, the receipt of which is hereby acknowledged, the parties agree as
follows:



 









 





     1. Agreement to Tender and Vote; Irrevocable Proxy.



          1.1 Agreement to Tender. (a) The Shareholder agrees that as promptly as practicable
after the commencement of the Offer, and in any event no later than the 10th Business
Day following the commencement of the Offer, the Shareholder shall irrevocably tender into the
Offer all of the Owned Shares owned by the Shareholder on or prior to the 10th Business
Day following the commencement of the Offer, free and clear of all Liens that would prevent
Shareholder from tendering the Shareholder’s shares in accordance with this Agreement or otherwise
complying with the Shareholder’s obligations under this Agreement. If the Shareholder acquires any
Owned Shares after the 10th Business Day following the commencement of the Offer
(including during any subsequent offering period, if any), the Shareholder shall irrevocably tender
into the Offer such Owned Shares on the date that the Shareholder shall acquire such Owned Shares.




               (b) The Shareholder agrees that once the Owned Shares are tendered into the Offer, the
Shareholder shall not withdraw the tender of such Owned Shares unless the Offer shall have been
terminated or shall have expired, or the Merger Agreement has been terminated, in each case in
accordance with the terms of the Merger Agreement.



          1.2 Agreement to Vote. The Shareholder hereby agrees that, during the term of this
Agreement, at any meeting of the shareholders of PhotoWorks, however called, or any adjournment or
postponement of such meeting, the Shareholder shall be present (in person or by proxy) and vote (or
cause to be voted) all of the Owned Shares (to the extent the Owned Shares are not purchased in the
Offer) (a) in favor of adoption of (1) the Merger Agreement and all the transactions contemplated
by the Merger Agreement, including the Merger, and (2) any other matter that is required to
facilitate the consummation of the transactions contemplated by the Merger Agreement and in
connection with the Merger Agreement to execute any documents which are necessary or appropriate in
order to effectuate the foregoing; and (b) against (1) any Takeover Proposal, any agreement or
arrangement related to such Takeover Proposal, (2) any of the following actions (other than those
actions that relate to the Offer, the Merger and any other transactions contemplated by the Merger
Agreement): (A) any merger, consolidation, business combination, sale of assets, or reorganization
of PhotoWorks or any PhotoWorks Subsidiary, (B) any sale, lease or transfer of any significant part
of the assets of PhotoWorks or any PhotoWorks Subsidiary, (C) any reorganization, recapitalization,
dissolution, liquidation or winding up of PhotoWorks or any PhotoWorks Subsidiary and (D) any
material change in the capitalization of PhotoWorks or any PhotoWorks Subsidiary, or the corporate
structure of PhotoWorks or any PhotoWorks Subsidiary, and (3) any action or agreement (other than
an adjournment of the PhotoWorks Shareholders Meeting that is recommended by the Board of Directors
of PhotoWorks in accordance with the terms of the Merger Agreement) that would impair the ability
of Parent and the Subcorp to complete the Offer or the Merger, the ability of PhotoWorks to
consummate the Merger, or that would otherwise be inconsistent with, prevent, impede or delay the
consummation of the transactions contemplated by the Merger Agreement.




          1.3 Irrevocable Proxy. The Shareholder hereby irrevocably grants to, and appoints,
Parent and any designee of Parent and each of Parent’s officers, as Shareholder’s attorney, agent
and proxy with full power of substitution and resubstitution, to the full extent of the
Shareholder’s voting rights with respect to the Owned Shares, to vote all the Owned Shares




- 2 -









 







or grant a consent or approval, at any meeting of the shareholders of PhotoWorks and in any
action by written consent of the shareholders of PhotoWorks, until the earlier of the acceptance of
Shares pursuant to the Offer or the date of termination of the Merger Agreement, on the matters
described in Section 1.2, and in accordance therewith. THIS PROXY AND POWER OF ATTORNEY ARE
IRREVOCABLE AND COUPLED WITH AN INTEREST SUFFICIENT IN LAW TO SUPPORT AND IRREVOCABLE PROXY AND, TO
THE EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY PERSON TO WHOM THE
SHAREHOLDER MAY TRANSFER ANY SHARES. The Shareholder revokes all other proxies and power of
attorneys, with respect to all of the Owned Shares that may have heretofore been appointed or
granted with respect to any matters covered by Section 1.2, and no subsequent proxy (whether
revocable or irrevocable) or power of attorney shall be given by the Shareholder, except as
required by any letter of transmittal in connection with the Offer. The Shareholder agrees to
execute any further agreement or form reasonably necessary or appropriate to confirm and effectuate
the grant of the proxy contained herein. Such proxy shall automatically terminate upon the valid
termination of this Agreement in accordance with Section 5.1.




     2. Representations and Warranties. The Shareholder hereby represents and warrants to
Parent and Subcorp as follows:



          2.1 Power; Due Authorization; Binding Agreement. The Shareholder has full legal
capacity, power and authority to execute and deliver this Agreement, to perform the Shareholder’s
obligations under this Agreement, and to consummate the transactions contemplated by this
Agreement. The execution, delivery and performance by the Shareholder of this Agreement, the
performance by the Shareholder of the Shareholder’s obligations hereunder and the consummation by
the Shareholder of the transactions contemplated hereby have been duly and validly authorized by
the Shareholder and no other actions or proceedings on the part of the Shareholder are necessary to
authorize the execution and delivery by the Shareholder of this Agreement, the performance by the
Shareholder of the Shareholder’s obligations hereunder or the consummation by the Shareholder of
the transactions contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Shareholder and constitutes a valid and binding agreement of the Shareholder,
enforceable against the Shareholder in accordance with its terms.




          2.2 Ownership of Shares. On the date of this Agreement, the Owned Shares set forth
opposite the Shareholder’s name on Schedule 1 are owned beneficially by the Shareholder and
include all of the Owned Shares owned beneficially by the Shareholder, free and clear of any Liens
that would prevent the Shareholder from tendering the Owned Shares in accordance with this
Agreement or complying with the Shareholder’s other obligations under this Agreement. As of the
date of this Agreement, the Shareholder does not own, beneficially or otherwise, any securities of
PhotoWorks other than the Common Shares set forth on Schedule 1, and does not have any
right to acquire any securities of PhotoWorks other than pursuant to the options, warrants and/or
convertible securities as set forth on Schedule 1. As of the date of this Agreement, the
Shareholder has, and as of immediately prior to the expiration of the Offer the Shareholder will
have, sole voting power, sole dispositive power, sole power to issue instructions with respect to
the matters set forth herein, and sole power to agree to all of the matters set forth



- 3 -









 






in this Agreement, in each case with respect to all of the Owned Shares and is and will be
entitled to dispose of the Owned Shares.




          2.3 No Conflicts. The execution and delivery of this Agreement by the Shareholder does
not, and the performance of the terms of this Agreement by the Shareholder will not, (a) require
the Shareholder to obtain the consent or approval of, or make any filing with or notification to,
any Governmental Authority (other than, if applicable, a filing on Schedule 13D), (b) if the
Shareholder is an entity, conflict with or result in a breach of any organizational documents
applicable to the Shareholder, (c) require the consent or approval of any other Person pursuant to
any agreement, obligation or instrument binding on Shareholder or its properties and assets, (d)
except for withdrawal rights that may be required by the U.S. federal securities laws, conflict
with or violate any law, rule, regulation, order, judgment, decree, writ or injunction applicable
to the Shareholder or pursuant to which any of its properties or assets are bound or (e) violate
any other agreement to which the Shareholder is a party, including any voting agreement,
shareholders agreement, irrevocable proxy or voting trust. The Owned Shares are not, with respect
to the voting or transfer of such Owned Shares, subject to any other agreement, including any
voting agreement, shareholders agreement, irrevocable proxy or voting trust.




          2.4 Acknowledgment. The Shareholder understands and acknowledges that each of Parent
and Subcorp is entering into the Merger Agreement in reliance upon the Shareholder’s execution,
delivery and performance of this Agreement.




          2.5 No Finder’s Fees. No broker, investment banker, financial advisor or other person
is entitled to any broker’s, finder’s financial advisor’s or other similar fee or commission in
connection with the transactions contemplated by the Merger Agreement or this Agreement based upon
arrangements made by or on behalf of the Shareholder.




     3. Representations and Warranties of Parent and Subcorp. Each of Parent and Subcorp
hereby represents and warrants to the Shareholders as follows:



          3.1 Power; Due Authorization; Binding Agreement. Parent and Subcorp are each
corporations duly organized, validly existing and in good standing under the laws of their
jurisdiction of organization. Parent and Subcorp have full corporate power and authority to
execute and deliver this Agreement, to perform their obligations under this Agreement, and to
consummate the transactions contemplated by this Agreement. The execution and delivery of this
Agreement and the consummation by Parent and Subcorp of the transactions contemplated by this
Agreement have been duly and validly authorized by all necessary corporate action on the part of
Parent and Subcorp, and no other proceedings on the part of Parent and Subcorp are necessary to
authorize this Agreement or to consummate the transactions contemplated by this Agreement. This
Agreement has been duly and validly executed and delivered by Parent and Subcorp and constitutes a
valid and binding agreement of Parent and Subcorp.




          3.2 No Conflicts. The execution and delivery of this Agreement by Parent and Subcorp
does not, and the performance of the terms of this Agreement by Parent and Subcorp will not, (a)
require Parent and Subcorp to obtain the consent or approval of, or make any filing with or
notification to, any Governmental Authority, (b) require the consent or approval of any other
Person pursuant to any agreement, obligation or instrument binding on



- 4 -









 






Parent and Subcorp or its properties and assets (other than a filing on Schedule 13D), (c)
except as may otherwise be required by federal securities laws, conflict with or violate any law,
rule, regulation, order, judgment, decree, writ or injunction applicable to Parent and Subcorp or
pursuant to which any of its or its Affiliates’ respective assets are bound or (d) violate any
other agreement to which Parent and Subcorp or any of its Affiliates is a party.]




     4. Certain Covenants of the Shareholder. The Shareholder hereby covenants and agrees
with Parent and Subcorp as follows:



          4.1 Restriction on Transfer. From the date of this Agreement and until the
termination of this Agreement in accordance with its terms, except any action contemplated by
Section 1, the Shareholder shall not, directly or indirectly, (i) sell, transfer, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance, assignment or other
disposition of, or limitation on the voting rights of, any of the Owned Shares (any such action, a
“Transfer”); provided that nothing in this Agreement shall prohibit the exercise by
Shareholder of any options to purchase Owned Shares, or (ii) (x) grant any proxies or powers of
attorney, deposit any Owned Shares into a voting trust or enter into a voting agreement with
respect to any Owned Shares, (y) take any action that would cause any representation or warranty of
the Shareholder contained herein to become untrue or incorrect or have the effect of preventing or
disabling the Shareholder from performing the Shareholder’s obligations under this Agreement, or
(z) commit or agree to take any of the foregoing actions.




          4.2 Additional Shares. The Shareholder hereby agrees, during the term of this
Agreement, to promptly notify Parent and Subcorp of any new Owned Shares acquired by Shareholder,
if any, after the execution of this Agreement. Any such shares shall be subject to the terms of
this Agreement as though owned by the Shareholder on the date of this Agreement.




          4.3 Shareholder Capacity. The Shareholder is entering into this Agreement solely in
the Shareholder’s capacity as the beneficial owner of the Owned Shares and not in the Shareholder’s
capacity as a director or officer of PhotoWorks. Nothing herein shall limit or affect any actions
taken by the Shareholder in the Shareholder’s capacity as a director or officer of PhotoWorks.




          4.4 No Solicitation. During the term of this Agreement, the Shareholder shall not,
nor shall it authorize or permit any of its investment banker, financial advisor, attorney,
accountant or other advisor, agent or representative retained by Shareholder in connection with the
transactions contemplated by this Agreement and the Merger Agreement (collectively,
“Representatives”) to, directly or indirectly through another Person, (i) solicit,
initiate, or knowingly encourage or facilitate (including by way of furnishing information), any
inquiries or the making, submission or announcement of, any proposal or offer that constitutes or
is reasonably likely to lead to a Takeover Proposal, (ii) other than informing persons of the
provisions contained in this Section 4.4, enter into, continue or participate in any discussions or
negotiations regarding any Takeover Proposal, or furnish any information concerning the
Shareholder, PhotoWorks and its Subsidiaries to any Person in connection with any Takeover
Proposal, or otherwise cooperate with or take any other action to knowingly facilitate any effort
or attempt to make or implement a Takeover Proposal, (iii) approve or recommend, or propose



- 5 -









 






publicly to approve or recommend, any Takeover Proposal or (iv) approve or recommend, or
propose to approve or recommend, or execute or enter into, any letter of intent, agreement in
principle, merger agreement, acquisition agreement, option agreement or other similar agreement or
propose publicly or agree to do any of the foregoing related to any Takeover Proposal;
provided, however, that the foregoing shall not prohibit the Shareholder from
taking any actions as a director or officer with respect to the foregoing in accordance with the
terms of the Merger Agreement.




          4.5 Dissenter’s Rights. The Shareholder agrees not to exercise, nor to cause the
exercise of, any dissenter’s right in respect of the Owned Shares which may arise with respect to
the Merger.




          4.6 Documentation and Information. The Shareholder (i) consents to and authorizes the
publication and disclosure by Parent and Subcorp of the Shareholder’s identity and holding of the
Owned Shares, and the nature of the Shareholder’s commitments, arrangements and understandings
under this Agreement, in any press release, the Offer Documents, or any other disclosure document
required in connection with the Offer, the Merger and any transactions contemplated by the Merger
Agreement, and (ii) agrees as promptly as practicable to give to Parent any information reasonably
related to the foregoing it may reasonably require for the preparation of any such disclosure
documents. The Shareholder agrees as promptly as practicable to notify Parent of any required
corrections with respect to any written information supplied by it specifically for use in any such
disclosure document, if and to the extent the Shareholder become aware that any shall have become
false or misleading in any material respect.




          4.7 Further Assurances. From time to time, at the request of Parent and Subcorp and
without further consideration, the Shareholder shall execute and deliver such additional documents
and take all such further action as may be necessary or desirable to consummate and make effective
the transactions contemplated by this Agreement.




          4.8 Consents and Waivers. The Shareholder hereby gives any consents or waivers that
are reasonably required for the consummation of the Merger under the terms of any agreements to
which the Shareholder is a party or pursuant to any rights the Shareholder may have.




     5. Miscellaneous.



          5.1 Termination of this Agreement. This Agreement shall terminate upon the earlier to
occur of (a) the termination of the Merger Agreement in accordance with its terms, (b) the
termination or expiration of the Offer, without shares being accepted for payment thereunder and
(c) the Effective Time.




          5.2 Effect of Termination. In the event of termination of this Agreement pursuant to
Section 5.1, this Agreement shall become void and of no effect with no liability on



- 6 -









 






the part of any party; provided, however, no such termination shall relieve
any party from any liability for any breach of this Agreement occurring prior to such termination.




          5.3 Entire Agreement. This Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties with respect to the subject matter hereof.
Nothing in this Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.




          5.4 Amendments. This Agreement may not be modified, amended, altered or supplemented,
except upon the execution and delivery of a written agreement executed by each of the parties to
this Agreement.




          5.5 Notices. All notices, requests and other communications to any party hereunder
shall be in writing and shall be deemed given if delivered personally, faxed (which is confirmed)
or dispatched by a nationally recognized overnight courier service to the parties at the following
addresses (or at such other address for a party as shall be specified by like notice):



If to Parent or Subcorp, to:



AG.com, Inc.

One American Road

Cleveland, Ohio 44144-2398

Fax No: (216) 889-5904

Attn: Chief Executive Officer



and



American Greetings Corporation

One American Road

Cleveland, Ohio 44144-2398

Fax No: (216) 252-6777

Attn: General Counsel



with a copy to:



Baker &Hostetler LLP

3200 National City Center

1900 East Ninth Street

Cleveland, Ohio 44114-3485

Attn: Matthew D. Graban



Fax No: (216) 696-0740




- 7 -









 







If to the Shareholder, to:



California Pacific LLC

50 California St., Suite 1500

San Francisco, CA 94111

Attention: Joe Waechter

Fax No.: (925) 258-0987



If to PhotoWorks, to:



PhotoWorks, Inc.

71 Columbia Street

Suite 200

Seattle, Washington 98104

Attention: Andrew Wood

Fax No.: (206) 284-5357



with a copy to:



Heller Ehrman LLP

701 Fifth Avenue, Suite 6100

Seattle, Washington 98104

Attn: David Wilson

Fax No: (206) 447-0849




          5.6 Governing Law; Jurisdiction; Waiver of Jury Trial.




               (a) Except to the extent that the laws of the jurisdiction of organization of any party
hereto, or any other jurisdiction, are mandatorily applicable to the matters arising under or in
connection with this Agreement, this Agreement shall be governed by the laws of the State of Ohio.
All actions and proceedings arising out of or relating to this Agreement shall be heard and
determined in any Ohio state or federal court sitting in the City of Cleveland.



               (b) Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the state
courts of Ohio and to the jurisdiction of the United States District Court for District of Ohio,
for the purpose of any action or proceeding arising out of or relating to this Agreement and each
of the parties hereto irrevocably agrees that all claims in respect to such action or proceeding
may be heard and determined exclusively in any Ohio state or federal court sitting in the City of
Cleveland, Ohio. Each of the parties hereto agrees that a final judgment in any action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Each of the parties hereto irrevocably consents to the
service of any summons and complaint and any other process in any other action or proceeding
arising out of or related to this Agreement, on behalf of itself or its property, by the personal
delivery of copies of such process to such party. Nothing in this Section 5.6 shall affect the
right of any party hereto to serve legal process in any other manner permitted by law.



- 8 -









 





               (c) EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.



          5.7 Specific Performance. The parties hereto acknowledge that Parent and Subcorp
shall be irreparably harmed and that there shall be no adequate remedy at law for a violation of
any of the covenants or agreements of the Shareholder set forth herein. Therefore, it is agreed
that, in addition to any other remedies that may be available to Parent or Subcorp upon any such
violation, Parent and Subcorp shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to Parent or to Subcorp at
law or in equity.




          5.8 No Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned, in whole or in part, by any of the parties without the
prior written consent of the other parties; provided that Parent and Subcorp may assign any
of or all of its rights, interests and obligations under this Agreement to Parent or to any direct
or indirect wholly owned Subsidiary of Parent, but no such assignment shall relieve Parent or
Subcorp of any of its obligations under this Agreement. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto
and their respective successors and permitted assigns. Any purported assignment not permitted
under this Section 5.8 shall be null and void.




          5.9 Counterparts. This Agreement may be executed in counterparts (including by fax
transmission) (each of which shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement) and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other parties. Copies of
executed counterparts transmitted by telecopy, fax or electronic transmission shall be considered
original executed counterparts for purposes of this Section 5.9 provided that receipt of copies of
such counterparts is confirmed.




          5.10 Interpretation. (a) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Whenever the words “include”, “includes” or “including” are used in this
Agreement, they shall be deemed to be followed by the words “without limitation.” The
words “hereof,” “herein” and “hereunder” and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any particular provision
of this Agreement. All terms defined in this Agreement shall have the defined meanings when used
in any document made or delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well as the plural forms
of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any
statute defined or referred to in this Agreement or in any agreement or instrument that is referred
to in this Agreement means such statute as from time to time amended, modified or supplemented,
including by succession of comparable successor statutes and references to all attachments thereto
and instruments incorporated therein. References to a Person are also to its permitted successors
and assigns.




- 9 -









 








               (b) The parties hereto have participated jointly in the negotiation and drafting of this
Agreement and, in the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision
of this Agreement.



          5.11 Severability. If any term or other provision of this Agreement is determined by
a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any
Applicable Law or public policy, all other terms, provisions and conditions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the parties as closely
as possible to the fullest extent permitted by Applicable Law in an acceptable manner to the end
that the transactions contemplated by this Agreement are fulfilled to the extent possible.




          5.12 Expenses. All costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.




[Remainder of page intentionally blank]




- 10 -









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.




	 	 	 	 	 
	 	STOCKHOLDER



California Pacific LLC

 	 
	 	By:  	/s/ Joe Waechter
 	 
	 	 	Name:  	Joe Waechter 	 
	 	 	Title:  	Managing Partner 	 
	 
	 	AG.COM, INC.

 	 
	 	By:  	/s/ Josef Mandelbaum
 	 
	 	 	Name:  	Josef Mandelbaum 	 
	 	 	Title:  	President and Chief Executive
Officer 	 
	 
	 	PHOTO MERGER CORP.

 	 
	 	By:  	/s/ Josef Mandelbaum
 	 
	 	 	Name:  	Josef Mandelbaum 	 
	 	 	Title:  	President and Chief Executive
Officer 	 
	 
	 	PHOTOWORKS, INC.

 	 
	 	By:  	/s/ Andy Wood
 	 
	 	 	Name:  	Andy Wood 	 
	 	 	Title:  	President and Chief Executive
Officer 	 



- 11 -









 






	 	 	 	 	 



SCHEDULE 1




Details of Ownership




Shareholder Name and Address:

California Pacific LLC

50 California St., Suite 1500

San Francisco, CA 94111




	 	 	 	 	 
	 	 	Number of shares
	Owned Shares
	 	 	3,385,517	 
	Option(s) to purchase Owned Shares
	 	 	 	 
	Warrant(s) to purchase Owned Shares
	 	 	562,500	 
	Security(ies) convertible into Owned Shares
	 	 	 	 







- 12 -