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Exhibit 10.38
PROMISSORY NOTE
U.S.$1,237,823 January 11, 2001
Principal Amount Original Issue Date
FOR VALUE RECEIVED, Xxxxx Xxxxxx and X.X. Investment Company Limited
Partnership, a Nevada limited partnership (collectively, the "MAKERS"), jointly
and severally promise to pay to Xxxxxx Technologies, Inc. ("HOLDER"), at the
principal office of Holder, or at such other place as Holder may designate, the
principal amount of ONE MILLION TWO HUNDRED THIRTY-SEVEN THOUSAND EIGHT HUNDRED
TWENTY-THREE AND NO/100 Dollars ($1,237,823), together with interest for the
periods such borrowed amounts are outstanding at a rate equal to 8.75% per annum
(the "REGULAR INTEREST RATE"), in lawful money of the United States of America.
Interest shall be compounded quarterly and calculated on the basis of actual
number of days elapsed over a year of 360 days.
Interest on this note shall be payable annually on January 31 of each
year commencing on January 31, 2002. All outstanding principal amount of this
Note, together with any accrued but unpaid interest thereon, shall be due and
payable on January 11, 2006. Any amount, when paid, shall be applied first to
the payment of interest accrued on the unpaid principal, and the remainder
thereof shall be credited to the then outstanding principal balance.
Notwithstanding the maturity date of this Note set forth above, Xxxxx
Xxxxxx ("Xx. Xxxxxx") hereby agrees to pay to Holder any and all annual bonus
payments net of any standard tax withholdings (the "Bonus Payments") paid by
Xxxxxx to Xx. Xxxxxx after the date hereof to reduce the amounts due hereunder.
The foregoing does not apply however to Xx. Xxxxxx'x annual bonus for fiscal
2000.
If any default in payment or any other default occurs hereunder or
under any other documents evidencing the indebtedness evidenced by this Note,
then the entire indebtedness evidenced hereby shall, at the option of Holder and
with thirty (30) days notice to Makers become due and payable and may be
collected forthwith. If Xx. Xxxxxx voluntarily resigns from employment with the
Holder for any reason, then the entire indebtedness evidenced hereby shall, at
the option of Xxxxxx and with sixty (60) days notice to Makers, become due and
payable and may be collected forthwith. So long as any default exists hereunder,
interest shall accrue on the outstanding principal balance of this Note at the
Regular Interest Rate plus the interest rate of two percent (2%) per annum.
Time is of the essence of this Note and, in the event this Note is
collected by law or through an attorney at law or under advice therefrom, Makers
jointly and severally agree to pay all costs of collection, including reasonable
attorneys' fees.
This Note has been executed and delivered, and shall be paid, in the
State of Florida. In the event there are any taxes of any nature imposed in
connection with the execution and delivery of this Note, the Makers shall be
responsible for all such taxes. The validity of this Note and the terms and
conditions set forth herein shall be governed, interpreted and construed
according to the laws of the State of Florida.
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This Note is secured by that certain Stock Pledge Agreement of even
date herewith by Makers in favor of Xxxxxx (the "PLEDGE AGREEMENT"). In the
event of a default in the payment of this Note, Xxxxxx's SOLE recourse shall be
foreclosure on the securities or other assets that are the subject of the Pledge
Agreement.
At any time hereafter, the Makers may choose to pay off the entire
outstanding principal balance, together with any and all accrued but unpaid
interest thereon. Upon receiving such payment, the Holder will immediately
release to the Makers all shares held as security for this Note under the Pledge
Agreement.
Makers acknowledge and agree that amounts borrowed by Makers from
Holder under this Note shall first be used to repay all indebtedness of Makers
owed to BancBoston Xxxxxxxxx Xxxxxxxx Inc. pursuant to a certain Margin
Agreement dated as of December 20, 1999 and thereafter for payment of federal
taxes related to Xxxxxx stock and stock option exercises.
As used herein, the terms "Makers" and "Holder" are intended to include
their respective heirs, successors, legal representatives and assigns, whether
voluntary by action of the parties or involuntary by operation by law.
IN WITNESS WHEREOF, the undersigned has hereunto set its hand and seal
the day and year first above written.
MAKERS:
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
X.X. Investment Company Limited Partnership
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx as General Partner
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STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (the "Agreement") is made this 11th day of
January, 2001, by and between Xxxxx Xxxxxx and X.X. Investment Company Limited
Partnership, a Nevada limited partnership (the "Partnership" and together with
Xxxxx Xxxxxx, the "Pledgors"), and Xxxxxx Technologies, Inc., a Delaware
corporation ("Company").
RECITALS
Company proposes to make a loan to Pledgors pursuant to a Promissory
Note of even date herewith (the "Note"). To secure the Note, Xxxxxxxx have
agreed to pledge to Company 901,945 shares of Common Stock of the Company which
the Partnership now owns (the "Shares"). Any capitalized terms used without
definition herein shall have the meanings assigned to them in the Note.
NOW, THEREFORE, Pledgors and Company agree as follows:
1. PLEDGE OF SECURITIES.
(a) Pledgors hereby pledge, assign and deliver to Company and
grant to Company a security interest in the Shares, together with all proceeds
and substitutions thereof, all cash, stock and other moneys and property paid
thereon, all rights to subscribe for securities declared or granted in
connection therewith, and all other cash and noncash proceeds of the foregoing
(all hereinafter called the "Pledged Collateral"), as security for the prompt
performance of all of the terms of the Note (the "Secured Indebtedness"), and
Xxxxxxxx' obligations hereunder and thereunder.
(b) The term "Pledged Collateral" shall also include any
securities, instruments or distributions of any kind issuable, issued or
received by Pledgors upon conversion of, in respect of, or in exchange for any
other Pledged Collateral, including, but not limited to, those arising from a
stock dividend, stock split, reclassification, reorganization, merger,
consolidation, sale of assets or other exchange of securities or any dividends
or other distributions of any kind upon or with respect to the Pledged
Collateral.
(c) The certificate or certificates for the securities
included in the Pledged Collateral, accompanied by an instrument of assignment
duly executed in blank by Xxxxxxxx, have been, or will be immediately upon the
subsequent receipt thereof by Xxxxxxxx, delivered by Pledgors to the Company.
Pledgors shall cause the books of Pledgors to reflect the pledge of the Shares
and, pending delivery of the Pledged Collateral, all brokerage accounts
currently holding the Pledged Collateral. Upon the occurrence of an Event of
Default hereunder, the Company may effect the transfer of any securities
included in the Pledged Collateral into the name of the Company and cause new
certificates representing such securities to be issued in the name of the
Company and/or cause such shares to be cancelled. Xxxxxxxx hereby agree to
execute and deliver to the Company a stock transfer power for this purpose.
Pledgors will execute and deliver such documents, and take or cause to be taken
such actions, as the Company may reasonably request to perfect or continue the
perfection of the Company's security interest in the Pledged Collateral.
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(d) During the term of this Agreement and upon mutual consent
of Pledgors and the Company, the Pledgors will have the right instruct the
Company to sell portions of the Pledged Collateral all in compliance with the
applicable securities laws.
2. VOTING PRIOR TO DEMAND. Unless an Event of Default (as defined
below) shall have occurred and be continuing, the Partnership shall be entitled
to exercise any voting rights with respect to the Pledged Collateral and to give
consent, waiver and ratification in respect thereof, PROVIDED that no vote shall
be cast or consent, waiver or ratification given or action taken which would be
inconsistent with any of the terms of this Agreement or which would constitute
or create any violation of any of such terms. All such rights of the Partnership
to vote and to give consent, waiver and ratification shall cease upon the
occurrence of an Event of Default.
3. EVENTS OF DEFAULT. Each of the following shall constitute an event
of default ("Event of Default") hereunder:
(a) The default of any payment or any other default under the
Note; or
(b) The breach of any material provision of this Agreement by
either or both Pledgors or the failure by either or both Pledgors to observe or
perform any of the material provisions of this Agreement, which breach has not
been cured within 30 days of its receipt of written notice thereof (unless
otherwise expressly set forth herein).
4. COMPANY'S REMEDIES UPON DEFAULT.
(a) Upon the occurrence and during the continuance of an Event
of Default, the Company shall have the right to exercise all such rights as a
secured party under the Uniform Commercial Code of the State of Florida as it,
in its sole judgment, shall deem necessary or appropriate, including the right
to sell all or any part of the Pledged Collateral at one or more public or
private sales upon five (5) days' written notice to Pledgors, and any such sale
or sales may be made for cash, upon credit, or for future delivery, and in
connection therewith, the Company may grant options, provided that any such
terms or options shall, in the best judgment of the Company, be extended only in
order to obtain the best possible price.
(b) Pledgors recognize that the Company may be unable to
effect a public sale of all or a part of the Pledged Collateral by reason of
certain prohibitions contained in the Securities Act of 1933, as amended
("Act"), so that the Company may be compelled to resort to one or more private
sales to a restricted group of purchasers who will be obliged to agree, among
other things, to acquire the Pledged Collateral for their own account, for
investment and without a view to the distribution or resale thereof. Pledgors
understand that private sales so made may be at prices and on other terms less
favorable to the seller than if the Pledged Collateral were sold at public
sales, and agrees that the Company has no obligation to delay the sale of any of
the Pledged Collateral for the period of time necessary (even if the Company
would agree), to register such securities for sale under the Act. Pledgors agree
that private sales made under the foregoing circumstances shall be deemed to
have been made in a commercially reasonable manner.
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(c) After the sale of any of the Pledged Collateral, the
Company may deduct all reasonable legal and other expenses and attorney's fees
for preserving, collecting, selling and delivering the Pledged Collateral and
for enforcing its rights with respect to the terms of the Note, and shall apply
the residue of the proceeds to the terms of the Note in such manner as the
Company in its reasonable discretion shall determine, and shall pay the balance,
if any to Pledgor.
(d) In lieu of the foregoing, upon an Event of Default, the
Company shall be entitled to cancel any shares of Common Stock of the Company
included in the Pledged Collateral. In such event, the value of each share of
such Common Stock for purposes of repayment of amounts due and payable under the
Note shall be equal to the Current Market Price of such stock. For purposes
hereof, the "Current Market Price" of the Common Stock on any date shall be
deemed to be equal to the average of the closing bid prices per share of the
Common Stock on Nasdaq or, if not then listed or traded on Nasdaq, such other
exchange, market or system that the Common Stock is then listed or traded on. If
on any such date the shares of such Common Stock are not listed or admitted for
trading on any national securities exchange or quoted on Nasdaq or a similar
service, the Current Market Price for such shares shall be the fair market value
of such shares on such date as determined in good faith by the Board of
Directors of the Company.
5. PLEDGOR WAIVERS. Pledgors waive any right to require the Company to
(a) proceed against any guarantor or any other person; (b) proceed against or
exhaust any other security held from Pledgors; (c) marshal any assets of
Pledgors; or (d) pursue any other remedy in the Company's power whatsoever.
6. INDEMNIFICATION. Pledgors, jointly and severally, agree to defend,
indemnify and hold harmless the Company and its officers, employees, and agents
against: (a) all obligations, demands, claims, and liabilities claimed or
asserted by any other party in connection with the transactions contemplated by
this Agreement, and (b) all losses or expenses in any way suffered, incurred, or
paid by the Company as a result of or in any way arising out of, following, or
consequential to transactions between the Company and Pledgors, under this
Agreement (including without limitation attorneys' fees and expenses), except
for obligations, demands, claims, liabilities, losses and the Company's expenses
caused by its breach of this Agreement, gross negligence or willful misconduct.
Notwithstanding the foregoing, the Pledgors' obligations for payments under the
Note shall be subject to the limitations set forth in the Note.
7. NOTICES. Unless otherwise provided in this Agreement, all notices or
demands by any party relating to this Agreement or any other agreement entered
into in connection herewith shall be in writing and (except for financial
statements and other informational documents which may be sent by first-class
mail, postage prepaid) shall be personally delivered or sent by certified mail,
postage prepaid, return receipt requested, as the case may be, at its addresses
set forth below. Such notice shall be deemed effective three (3) days after
deposit if sent by first class mail or upon actual receipt if personally
delivered or sent by certified mail.
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If to Pledgors Xxxxx Xxxxxx
0000 Xxxxxxxxx Xxxx.
Boca Raton, Florida 33434
FAX: 000-000-0000
If to the
Company Xxxxxx Technologies, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
ATTN: Chief Financial Officer
FAX: 000-000-0000
The parties hereto may change the address at which they are to receive notices
hereunder, by notice in writing in the foregoing manner given to the other.
8. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
The Note shall be governed by, and construed in accordance
with, the internal laws of the State of Florida, without regard to principles of
conflicts of law. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PLEDGORS
AND THE COMPANY EACH HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OR ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THE NOTE OR ANY OF THE
TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY
RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL
INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH PARTY REPRESENTS AND
WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL. PLEDGORS AND THE COMPANY ALSO AGREE THAT ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE NOTE OR TO ENFORCE ANY JUDGMENT
OBTAINED AGAINST PLEDGOR IN CONNECTION WITH THIS AGREEMENT OR SUCH OTHER
DOCUMENT, MAY BE BROUGHT BY THE COMPANY OR PLEDGORS IN ANY STATE OR FEDERAL
COURT SITTING IN THE COUNTY OF THE STATE IN WHICH THE COMPANY'S ADDRESS SHOWN IN
SECTION 7 ABOVE IS LOCATED, OR IN ANY OTHER COURT TO THE JURISDICTION OF WHICH
SUCH PLEDGOR OR ANY OF ITS PROPERTY IS OR MAY BE SUBJECT. EACH OF THE PLEDGORS
AND THE COMPANY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE AFORESAID STATE
AND FEDERAL COURTS, AND IRREVOCABLY WAIVES ANY PRESENT OR FUTURE OBJECTION TO
VENUE IN ANY SUCH COURT, AND ANY PRESENT OR FUTURE CLAIM THAT ANY SUCH COURT IS
AN INCONVENIENT FORUM, IN CONNECTION WITH ANY ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT OR THE NOTE.
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(a) This Agreement may not be amended or modified except by a
written instrument signed by the Company and Pledgors.
(b) This Agreement, the Note and the agreements and
instruments executed in connection herewith and therewith constitute the entire
agreement between the Company and Pledgors with respect to the subject matter
hereof and supersede all prior agreements, understandings, offers and
negotiations, oral or written.
(c) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, under seal, as of the date first above written.
PLEDGORS: COMPANY:
XXXXXX TECHNOLOGIES, INC.
/s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: Chief Financial Officer
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X.X. Investment Company Limited Partnership
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx as General Partner
