EXHIBIT 10.9
FORM OF PROMISSORY NOTE
$[________________]
West Trenton, New Jersey
February 9, 1998
FOR VALUE RECEIVED, EPITAXX, Inc. a Delaware corporation with a principal
place of business at 0 Xxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx 00000 (the
"Borrower"), promises to pay to [Name of Stockholder] (the "Stockholder"), by
FedWire transfer of immediately available funds to the account hereinafter
designated, the principal sum of $[______________], plus interest. Interest
shall accrue on the principal balance outstanding from time to time, from the
date hereof until the whole of this Note (including principal and interest) has
been paid, at the rate of 6.02% per annum. Interest on this Note shall be
computed on the basis of a year of three hundred sixty-five (365) days and the
actual number of days elapsed.
This Note has been executed and delivered subject to the following terms
and conditions:
a. The principal of this Note constitutes the dividend declared and
payable by the Borrower to the Stockholder, the principal shareholder
of the Borrower, pursuant to resolutions dated December 11, 1997
adopted by the Board of Directors of the Borrower.
b. The principal shall be payable on the earlier of (i) the third
anniversary of the date of this Note, provided that the Borrower's
total stockholders' equity equals or exceeds Fifteen Million Dollars
($15,000,000) and (ii) the date the Borrower's total stockholders'
equity first equals or exceeds Fifteen Million Dollars ($15,000,000).
In any such event, the whole of this Note, both principal and accrued
and unpaid interest, shall be immediately due and payable upon the
Stockholder's demand.
Accrued interest shall be payable semiannually, on the last day of
each succeeding December and June until this Note shall be paid in
full. Notwithstanding the foregoing, whenever any payment on this
Note shall be stated to be due on a day that is not a business day in
the States of New York and New Jersey, such payment shall be made on
the next succeeding business day and such extension of time shall be
included in the computation of the interest payable on this Note. For
the purpose of this Note, the term "business day" shall mean any day
other than a Saturday, a Sunday or any day which is a legal holiday
under the laws of the States of New York and New Jersey or is a day
on which banking institutions located in the States of New York and
New Jersey are authorized or are required by law or other
governmental action to close. Payments shall be made to the
following account, unless otherwise designated in writing by the
Stockholder to the Borrower:
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[Bank]
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[Address]
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[Account #]
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[ABA #]
In favor of [Name of Stockholder]
This Note shall be paid without claim of set-off, counterclaim or
deductions of any nature or for any cause whatsoever.
c. If this Note or interest hereon is not paid when due, or suit is
brought, the Borrower, and each endorser, guarantor, and any other
person who is now or may hereafter become primarily or secondarily
liable for the payment of this Note or any portion thereof, agree to
pay all costs of collection, including reasonable attorneys' fees and
disbursements, incident to the enforcement, protection or preservation
of any right or claim of the Stockholder under this Note, any guaranty
of the debt hereunder or any security interest which may hereafter
secure the debt hereunder. In the event of any bankruptcy or similar
proceedings, costs of collection shall include all costs and attorneys'
fees incurred in connection with such proceedings, including the fees
of counsel for attendance at meetings of creditors or other committees.
d. This Note may be prepaid in whole or in part at any time and from time
to time without premium or penalty; provided, that any partial payment
shall be allocated first to interest and the balance, if any, to
principal.
e. Borrower and each endorser, guarantor and any other person who is now
or may hereafter become primarily or secondarily liable for the payment
of this Note or any portion hereof, waives notice, presentment, notice
of dishonor and protest or demand in connection with the delivery,
acceptance, performance, default or enforcement of this Note.
f. Xxxxxxxx acknowledges receipt of a copy of this Note.
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g. This Note shall be governed by the laws of the State of Delaware.
EPITAXX, INC.
By:
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Xxxxxx Xxxxxxxx
Its: Chief Executive Officer and Vice
Chairman
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