Exhibit 10.18
SECURED PROMISSORY NOTE
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$1,500,000.00 Santa Clara, California
December 6, 2000
FOR VALUE RECEIVED, the undersigned, Xxxxxx X. Xxxxxx and Xxxxxxxxx Xxxxxxx
Xxxxxx (together, the "Borrowers") promise to pay to Brio Technology, a Delaware
corporation ("Lender"), or order, at the principal office of Lender, or at such
other place as Lender may from time to time designate in writing, the sum of One
Million Five Hundred Thousand Dollars ($1,500,000.00), plus accrued but unpaid
interest thereon. Except as provided below in the case of a default in payment,
the principal amount of this Note shall bear interest at a rate of 6.10% per
annum. Principal and accrued interest hereunder shall be due and payable on
demand on the tenth day following the release of earnings of the Lender for the
December quarter provided that such time is during an open trading window for
directors and officers of the Lender under the Lender's Xxxxxxx Xxxxxxx Policy
in which the Borrowers can sell shares of Xxxxxx's Common Stock. Otherwise, the
principal and accrued interest shall be due and payable on the fifth day
following the opening of the next open trading window for directors and officers
of the Lender (the "Due Date").
If either Xxxxxx X. Xxxxxx or Xxxxxxxxx Xxxxxxx Xxxxxx'x employment with
the Lender shall terminate for any reason prior to the Due Date, all of the then
outstanding principal and accrued interest under this Note shall become
immediately due and payable.
As security for the full and timely payment of this Note, the Borrowers
hereunder pledge and grant to Lender a security interest in 50% of the shares of
Xxxxxx's Common Stock held by the Borrowers on the date hereof (the "Pledged
Stock"). The Borrowers shall, upon execution of this Note, deliver all
certificates representing the Pledged Stock to Lender as evidence of the
security interest granted hereby. The Borrowers shall not convey, assign,
pledge or otherwise transfer any of the Pledged Stock so long as any amounts are
owed under this Note.
As additional security for the full and timely payment of this Note, and to
the extent permitted under applicable law, the Borrowers pledge and grant to
Lender a security interest in any economic interest of the Borrowers which may
become due and payable upon termination of employment arising out of (1) any
vacation time accruing to the Borrowers as a result of Xxxxxx X. Xxxxxx or
Xxxxxxxxx Xxxxxxx Xxxxxx'x employment with Xxxxxx, (2) any accrued but unpaid
bonus to which the Borrowers become entitled as a result of Xxxxxx X. Xxxxxx or
Xxxxxxxxx Xxxxxxx Xxxxxx'x employment with Xxxxxx.
In addition, Borrowers shall grant Lender a security interest in certain
real property located at 000 Xxxxxx Xx., Xxxx Xxxx, XX 00000 and 0000
Xxxxxxxxxx Xxx., Xxxx Xxxx, XX 00000 (the "Property") and shall cooperate in any
manner and take such actions requested by Xxxxxx to grant, memorialize and
perfect such security interest under all applicable laws, including but not
limited to the preparation and filing of a customary land mortgage covering the
Property, which land mortgage shall provide, among other things, that upon
default by Borrowers upon the covenants and agreements under such land mortgage,
the holder of this Note may declare the entire principal amount outstanding
under this Note, and any accrued interest thereon, to be immediately due and
payable.
If the Borrowers shall sell, convey or alienate the Pledged Stock or the
Property, or any part thereof, or any interest therein, or shall be divested of
their title or any interest therein in any manner or way, whether voluntarily or
involuntarily, without the written consent of the holder hereof being first had
and obtained, the holder of this Note shall have the right, at its option, to
declare any indebtedness or obligations hereunder immediately due and payable.
Borrowers shall notify the holder of this Note promptly in writing of any
transaction which may give rise to such right of acceleration. Borrowers shall
pay to the holder of this Note direct, ascertainable and documented damages the
holder may sustain by reason of Borrowers' breach of the covenant of notice
contained in this paragraph.
Amounts due under this Note shall be payable in lawful money of the United
States of America and in immediately available funds free and clear of and
without deduction for any present or future taxes, restrictions or conditions of
any nature. Any installment of principal due under this Note which is not paid
when due shall bear interest at the rate of ten percent (10%) per annum, or, if
less, the highest rate permitted by law from the date such payment became due
until paid. All payments under this Note shall be applied first to any accrued
and unpaid interest and then to principal. Borrowers shall have the right to
pay, without penalty or premium, all or any portion of the outstanding principal
amount of this Note prior to the date for payment specified above.
Borrowers acknowledge that notwithstanding the foregoing, the obligations
under this Note are with full recourse to Borrowers and Borrowers shall have
full personal liability for any amounts of principal or interest, or any other
payments due under this Note, without regard to the value of the Pledged Stock
or of the Property.
Borrowers waive presentment, protest and demand, the notice of protest,
demand, dishonor and nonpayment of this Note and diligence in taking any action
to collect any amounts owing under this Note by proceeding against any of the
rights and interests in and to the Pledged Stock and the Property, securing the
payment of this Note. If action is instituted on this Note, Borrowers agree to
pay such reasonable sum as attorney's fees as the court may fix and award in
such action.
IN WITNESS WHEREOF, Xxxxxxxxx have executed this Note as of the date first
written above.
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxxxxxx Xxxxxxx Xxxxxx
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Xxxxxxxxx Xxxxxxx Xxxxxx
