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EXHIBIT 10.11
LOAN AGREEMENT
______________
This Loan Agreement (the "Agreement") is entered into as of the 17 day
of October, 1996 by and between Nuko Information Systems, Inc., a New York
corporation (the "Company"), and Xxxx X. Xxxxxx ("Employee") and Xxxxxxxx X.
Xxxxxx ("Employee's Spouse").
RECITALS
A. Employee has accepted an offer of employment with the Company.
B. In accepting this offer of employment, Employee has found it
necessary to relocate his residence.
C. To aid Employee in such relocation, the Company and Employee
desire that the Company shall loan to Employee the total amount of Three
Hundred Thousand Dollars ($300,000) (which loan shall be forgiven on the terms
and conditions set forth in Exhibit "A") to assist Employee in purchasing a new
principal residence as set forth below under the terms and conditions of this
Agreement.
NOW, THEREFORE, the Company and Employee agree as follows:
AGREEMENT
1. The Company agrees to lend Employee the amount of Three Hundred
Thousand Dollars ($300,000) (the "Loan").
2. Concurrently with the execution and delivery of this Agreement,
Employee and Employee's Spouse shall execute and deliver to the Company a
promissory note (the "Note") in the amount of Three Hundred Thousand Dollars
($300,000) in the form attached hereto as Exhibit "A".
3. Employee hereby makes the following representations and
warranties to the Company and acknowledges that the Company is relying on such
representations in making the Loan.
A. Employee and Employee's Spouse have good and marketable
title to the Property free and clear of all security interests and liens or
encumbrances securing monetary obligations other than a first loan (the "First
Loan") secured by a deed of trust constituting a first lien against the
Property in favor of Commonwealth United Mortgage Company, in the principal
amount of Three Hundred Twenty-Four Thousand Dollars ($324,000).
B. There are no actions, proceedings, claims or disputes
pending or, to Employee's or Employee's Spouse's knowledge, threatened against
or affecting Employee, Employee's Spouse, or the Property, except as shall be
disclosed to the Company in writing prior to the date of this Agreement.
C. Employee reasonably expects to be entitled to and will
itemize deductions each year that the loan is outstanding.
D. The Loan will be used only to purchase a principal
residence of Employee being acquired in connection with the commencement of
employment at a "new principal place of work" within the meaning of Section 217
of the Internal Revenue Code of 1986.
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4. Upon payment to Employee of the amount of the Loan, Employee
shall execute that certain Employee's certificate attached hereto as Exhibit
"B" and incorporated herein by this reference.
5. Employee understands that the Loan provided for herein is not
transferable by Employee and is conditioned on the future performance of
substantial services by Employee.
6. This Agreement and the exhibits attached hereto constitute the
full and entire understanding and agreement between the parties hereto with
regard to the subject hereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated other than by a written instrument
signed by the party against whom enforcement of any such amendment, waiver,
discharge or termination is sought.
7. Employee understands that this Agreement does not constitute an
employment agreement or a promise by the Company to continue Employee's
employment.
8. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively given upon
personal delivery to the party to be notified or five (5) days after deposit
with the United States mail, by registered or certified mail, postage prepaid,
addressed to the address set forth on the signature page hereof, or such other
address as either party may furnish to the other party.
9. Neither party may assign the rights and/or duties under this
Agreement to a third party without the prior written consent of the other party
to this Agreement, except that in the event that the Company is merged into
another corporation, or substantially all the outstanding stock or assets of
the Company are sold to another corporation and the surviving or acquiring
corporation agrees in writing to be bound by the rights and duties of the
Company under this Agreement, then the Company may assign its rights and duties
hereunder to such acquiring or surviving corporation.
10. All exhibits attached hereto are incorporated herby by
reference.
11. This Agreement shall be governed in all respects by the laws of
the State of California.
12. In case one or more provisions herein shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, and this Agreement shall be construed as if such invalid, or
unenforceable provision had not been contained herein.
13. Each party hereto agrees to do such further acts and things and
to execute, acknowledge and deliver or to cause to have executed, acknowledged
and delivered such other and further instruments and documents as may
reasonably be requested by the other to carry out the purposes and intents of
this Agreement. This Agreement may be executed in counterparts and each
counterpart shall be deemed an original instrument.
14. Without limiting the generality of paragraph 16 below, Employee
hereby acknowledges that the Company has made no representation or warranty to
Employee concerning the income tax consequences of the loan to Employee, and
Employee shall be solely responsible for ascertaining and bearing such tax
consequences.
15. THE NOTE, THIS AGREEMENT AND ALL RELATED DOCUMENTATION ARE
EXECUTED VOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE ON THE PART OR
ON BEHALF OF THE PARTIES HERETO, WITH THE FULL INTENT OF CREATING THE
OBLIGATIONS AND SECURITY INTERESTS DESCRIBED HEREIN AND THEREIN. THE PARTIES
ACKNOWLEDGE THAT: (a) THEY HAVE READ SUCH DOCUMENTATION; (b) THEY HAVE BEEN
REPRESENTED IN THE PREPARATION, NEGOTIATION AND EXECUTION OF SUCH
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DOCUMENTATION BY LEGAL COUNSEL OF THEIR OWN CHOICE OR THAT THEY HAVE
VOLUNTARILY DECLINED TO SEEK SUCH COUNSEL; (c) THEY UNDERSTAND THE TERMS AND
CONSEQUENCES OF THE NOTE, THIS AGREEMENT AND ALL RELATED DOCUMENTATION AND THE
OBLIGATIONS THEY CREATE; AND (d) THEY ARE FULLY AWARE OF THE LEGAL AND BINDING
EFFECT OF THIS AGREEMENT, THE NOTE, AND THE OTHER DOCUMENTS CONTEMPLATED BY
THIS AGREEMENT.
INITIAL: JHG INITIAL:
____________________ ____________________
Xxxx X. Xxxxxx Company
INITIAL: MEG
____________________
Xxxxxxxx X. Xxxxxx
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
EMPLOYEE: COMPANY
NUKO INFORMATION SYSTEMS, INC.
/s/ Xxxx X. Xxxxxx By:/s/ Xxxxxx Xxxxx Kondamoori
_____________________________ ________________________________
EMPLOYEE'S SPOUSE:
/s/ Xxxxxxxx X. Xxxxxx
_____________________________
Xxxxxxxx X. Xxxxxx
