Exhibit 10.32
LOAN AGREEMENT
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This Loan Agreement ("Agreement") is made effective as of March 6, 2001 by
and between CrossWorlds Software, Inc., a Delaware corporation ("Company"), on
the one hand, and Xxxx Xxxxxx ("Xx. Xxxxxx") and Xxxxxx Xxxxxx (collectively
"Borrowers"). Company and Borrowers are sometimes referred to herein
collectively as a "party" or "parties."
BACKGROUND
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Borrowers desire to borrow from Company, and Company desires to lend to
Borrowers, an aggregate of $85,000 ("Borrowed Amount").
AGREEMENT
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In consideration of the foregoing, and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties agree as follows:
1. Agreement to Lend. Subject to the terms and conditions contained in this
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Agreement and upon execution of this Agreement, Company agrees to issue to
Borrowers or for Borrowers' account, at Company's option, a check or other
readily available funds in the Borrowed Amount ("Loan") upon the date of
this Agreement.
2. Promissory Note. In consideration of Company's delivery of the Borrowed
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Amount, Borrowers will execute a secured promissory note in the form
attached hereto as Exhibit A ("Promissory Note"), in the principal amount
of such Borrowed Amount (bearing no interest except in the event of late
payment).
3. Repayment of Loan. Borrowers jointly and severally agree to repay in full
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the principal amount of the Loan on the terms specified in the Promissory
Note.
4. Borrower Covenants. Borrowers hereby covenant and agree, for the duration
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of this Agreement, the Loan and the Promissory Note, to indemnify and hold
Company harmless from and against any and all liability, expenses
(including reasonable attorneys' fees), costs and obligations relating to
the Loan.
5. Limited Effect on Relationship. Nothing in this Agreement shall alter in
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any way the nature of Borrowers' legal relationship to Company (including,
without limitation, Xx. Xxxxxx'x employment relationship with Company),
except as expressly set forth herein.
6. Miscellaneous.
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a. Successors and Assigns. The terms and conditions of this Agreement
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shall inure to the benefit or, and shall be binding upon, the
respective successors and assigns of the parties. This Agreement may
not be assigned by Borrowers without the prior written consent of
Company. Nothing in this Agreement, express or implied, is intended to
confer upon any party, other than the parties hereto and their
respective successors and assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
b. Governing Law. This Agreement and all acts and transactions pursuant
hereto, and all rights and obligations of the parties hereunder, shall
be governed, construed and interpreted in accordance with the laws of
the State of California, without giving effect to California
principles regarding conflict of laws.
c. Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the
parties cannot reach a mutually agreeable and enforceable replacement
for such provision, the (i) such provision shall be excluded from this
Agreement, (ii) the balance of the Agreement shall be interpreted as
if such provision were so excluded, and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.
d. Advice of Legal Counsel. Each party acknowledges and represents that
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in executing this Agreement, it has had the opportunity to seek advice
as to its legal rights from legal counsel, and such party has read and
understood all the terms and provisions of this Agreement. This
Agreement shall not be construed against any party by reason of their
role in drafting or preparing this Agreement.
e. Counterparts. This Agreement may be executed in counterparts, each
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of which shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.
f. Entire Agreement; Modification. This Agreement and the Promissory
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Note attached hereto constitute the parties' entire agreement with
respect to the subject matter hereof, and supersede any and all prior
(and any and all contemporaneous oral) agreements, communications,
representations and understandings between the parties with respect to
said subject matter. Neither this Agreement nor the Promissory Note
may be amended or modified, except pursuant to a written agreement
signed by authorized representatives of all parties.
/s/ Xxxx X Xxxxxx /s/ Xxxxxx Xxxxxx
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Xxxx Xxxxxx Xxxxxx Xxxxxx
3/28/01 3/25/01
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Date Date
FOR CROSSWORLDS SOFTWARE, INC.:
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
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Name
SVP & CFO
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Title
4/2/01
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Date
PROMISSORY NOTE
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$85,000 Burlingame, California
March 6, 2001
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the undersigned, Xxxx Xxxxxx ("Xx. Xxxxxx") and Xxxxxx
Xxxxxx (collectively, "Promisors"), promise to pay CrossWorlds Software, Inc., a
Delaware corporation ("Company"), at its principal offices (currently located at
000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, California 94010) the principal
sum of $85,000. No interest shall be charged in connection with such amount,
except in the event of late repayment, in which event Company shall be entitled
to the maximum amount permitted by applicable law. Full payment of the principal
sum of $85,000 shall be due and payable on February 15, 2002. Company shall have
the right to deduct the amount due and payable to Company under this Promissory
Note, at the time such amount becomes due and payable, from any amounts then due
Xx. Xxxxxx from Company (including, without limitation, accrued salary and
unused vacation benefits). Promisors shall promptly execute the required
documentation provided by Company relating to any such deduction at the time of
any such deduction.
The principal is payable in lawful money of the United States of America.
Amounts due under this Promissory Note may be prepaid at any time without
premium or penalty.
Should any action be instituted for collection on this Promissory Note, the
reasonable costs and attorneys' fees of the holder of this Promissory Note shall
be paid by Promisors. The holder of this Promissory Note shall have full
recourse against Promisors and, in case of an event of default, may proceed
against Promisors as permitted by applicable law. The makers and endorsers have
waived and hereby do severally waive presentment for payment, protest, notice of
protest and notice of nonpayment of this Promissory Note.
This Promissory Note is not secured.
/s/ Xxxx X Xxxxxx /s/ Xxxxxx Xxxxxx
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Xxxx Xxxxxx Xxxxxx Xxxxxx
