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EXHIBIT 10.35
FORM OF PROMISSORY NOTE
September 8, 2000 $___________
_____________ (the "Founder"), for value received, hereby
promises to pay to Adir Technologies, Inc., a Delaware corporation (the
"Company" or "Adir"), the principal amount of
___________________________________________($_______) (the "Note Principal
Amount"), together with interest on the unpaid principal balance thereof (as set
forth in Section 3 hereof), on September 8, 2005 (the "Maturity Date").
Pursuant to and subject to the terms of the Founders Stock
Agreement, dated of even date herewith, between Founder and Adir, the Founder
has issued this Note to the Company as payment by the Founder for a number of
shares of Common Stock of Adir (collectively, the "Purchased Stock").
1. PLEDGE AGREEMENT. The amounts due under this Note are
secured by an agreement pledging the Purchased Stock (the "Pledge Agreement").
2. PRINCIPAL
(a) SCHEDULED PAYMENT. The Founder will pay the entire unpaid
principal amount of this Note on the Maturity Date or as otherwise required
herein.
(b) OPTIONAL PREPAYMENT. Subject to Section 2(c) hereof, the
Founder may prepay the principal amount of this Note, in whole or in any $1,000
increment (together with accrued but unpaid interest on this Note as of the date
of such prepayment), at any time and from time to time without penalty or
premium.
(c) MANDATORY PREPAYMENTS. If the Founder sells or otherwise
transfers (other than a transfer to a Permitted Transferee, as defined in, and
in accordance with, the Right of First Offer and Co-Sale Agreement dated of even
date herewith) a number of shares of the Purchased Stock, which calculated as a
percentage of the original number of shares of the Purchased Stock shall be the
"Percentage," then, on the date of the consummation of such sale or transfer,
the Founder shall be obligated, to the extent the Founder has obligations to the
Company under this Note, to pay to the Company an amount equal to the lesser of
(1) the gross proceeds received by the Founder for the Purchased Stock sold or
otherwise transferred and (2) the sum of (y) the product of (i) the original
principal amount of the Note times (ii) the Percentage plus (z) the amount of
the accrued but unpaid interest on the Note as of the date that the payment
required under this paragraph is made. Such amount paid to the Company shall
first reduce accrued but unpaid interest, if any, on this Note pursuant to
Section 3 hereof and any remaining amount paid to the Company shall reduce the
remaining principal amount of this Note.
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(d) PARTIAL RECOURSE. The Founder's obligation to pay 50% of
the initial principal amount hereunder (the "Recourse Obligation") is recourse
and shall not be limited to the value of the collateral under the Pledge
Agreement. The Founder's obligation to pay the remaining 50% of the principal
amount hereunder (the "Nonrecourse Obligation") is nonrecourse. Any amount that
the Founder pays to the Company which reduces the principal amount hereunder
(whether or not a portion of such payment is derived by the Founder from the
sale or transfer of all or a portion of the Purchased Stock as discussed in
Section 2(c), including a direct sale or transfer to the Company) shall first
reduce (but not below zero) the amount of the Nonrecourse Obligation (taking
into account prior reductions to such obligational amount under this Section
2(d)) and then, if ever, shall reduce the amount of the Recourse Obligation.
3. INTEREST
(a) RATE. Interest shall accrue on the unpaid principal
balance of this Note at a compounding rate of 6.33% per annum.
(b) CALCULATED. Interest shall be calculated on the basis of
actual days elapsed assuming a 360 day year consisting of twelve 30-day months.
(c) SCHEDULED PAYMENT. In addition to Section 2(c) and other
requirements hereunder to pay accrued but unpaid interest, the Founder shall pay
on the Maturity Date the entire accrued but unpaid interest amount of this Note
as of the Maturity Date.
(d) FULL RECOURSE. The Founder's obligation to pay amounts of
unpaid interest hereunder is recourse and shall not be limited to the value of
the collateral under the Pledge.
4. PAYMENT ON NONBUSINESS DAYS. If any payment of principal or
interest on this Note shall become due on a Saturday, Sunday, or legal holiday
under the laws of the State of New Jersey, such payment shall be made on the
next succeeding business day, and any such extended time of the payment of
principal shall be included in computing the amount of accrued interest at the
rate this Note bears in connection with such payment.
5. EVENTS OF DEFAULT. A default ("Default") shall occur when
and if (a) the Founder fails to pay any principal, interest or other amounts
payable under this Note within ten days after the date when due; or (b) the
death of the Founder; or (c) the Pledge Agreement shall cease to be in full
force and effect or the Founder shall fail to comply with any of the provisions
thereof; or (d) the Founder makes an assignment for the benefit of creditors,
files a petition in bankruptcy, petitions or applies to any tribunal for the
appointment of any receiver or trustee for any substantial part of the Founder's
property, or commences any proceeding relating to the Founder under any
reorganization, arrangement, readjustments of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or (e)
within 60 days after the filing of a bankruptcy petition or commencement of any
proceeding against the Founder seeking any reorganization, liquidation or
similar relief under any present or future statute, law or regulation, the
proceeding shall not have been dismissed, or if, within 60 days after the
appointment, without the consent or acquiescence of the Founder, of any trustee,
receiver or liquidator of all or any substantial part of properties of the
Founder, the appointment shall not
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have been vacated; or (f) termination of the Founder's employment by the Company
or its subsidiaries or their affiliates.
6. REMEDIES ON DEFAULT. Upon the occurrence of a Default
(other than a Default described in Section 5(d) or (e)), the Company may declare
the Note to be immediately due and payable, whereon the outstanding principal of
the Note together with accrued interest thereon shall become forthwith due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Founder, anything contained
herein or the Pledge Agreement to the contrary notwithstanding. Upon the
occurrence of a Default described in Section 5(d) or (e), the outstanding
principal amount of the Note together with accrued interest thereon shall
automatically become due and payable, without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly waived by the Founder,
anything contained herein or in the Pledge Agreement to the contrary
notwithstanding.
7. WAIVER. The Company may, at any time, to any extent, and
upon any terms and conditions, waive any Default and its consequences. In the
case of any such waiver and subject to its stated terms and conditions, the
Founder and the Company shall be restored to their former positions and rights
hereunder. No delay or failure of the Company or any holder of this Note in
exercising any right, power or privilege under this Note or the Pledge Agreement
shall affect such right, power or privilege. Neither any single or partial
exercise, nor any abandonment or discontinuance of steps to enforcement, of such
a right, power, or privilege shall affect such right, power, or privilege. The
rights and remedies of the Company hereunder are cumulative and not exclusive.
Any Company waiver of, permission for, consent to, or other approval of any
breach or Default hereunder, or any such waiver of any right, provisions, or
conditions hereof, must be in writing, shall be effective only to the extent set
forth in such writing, and shall not imply or effect waiver of future
enforcement of such rights, provisions, or conditions.
8. NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Note will be in
writing and will be deemed to have been given when delivered personally, or one
business day following when sent next-day delivery via a nationally recognized
overnight courier, or when sent, when sent via facsimile confirmed in writing to
the recipient. Such notices, demands and other communications will be sent to
the address indicated below:
To the Company:
Adir Technologies, Inc.
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: President
Xxxxxxxxx: (973) ___-____
To the Founder:
_______________
_______________
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000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (973) ___-____
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
9. AMENDMENT. The terms of this Note may not be amended or
modified, except in writing signed by the Founder and the Company.
10. SUCCESSORS; ASSIGNMENT. This Note shall be binding upon
and inure to the benefit of the heirs, representatives, successors, and assigns
of the parties, provided however, that this Note may not be assigned by the
Founder without the prior written consent of the Company.
11. CONSENTS; WAIVERS. The Founder expressly consents to
renewals and extension of time at or after the maturity hereof, without notice,
and expressly waives diligence, presentment, protest, demand, and notice of
every kind now or hereafter required by applicable law and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
12. SEVERABILITY. Every provision of this Note is intended to
be severable. In the event any term or portion hereof is declared to be illegal
or invalid for any reason whatsoever by a court of competent jurisdiction, such
illegality or invalidity shall not affect any other term or portion of this
Note, which shall remain binding and enforceable.
13. NO USURY. This Note is subject to the express condition
that at no time shall the Founder be obligated or required to pay interest at a
rate in excess of the maximum rate which the Company is permitted by law to
contract or agree to pay. The Founder understands and believes that this lending
transaction has been negotiated and entered into in the State of New Jersey and
is to be governed by, and complies with, the usury laws of the State of New
Jersey; however, if any interest or other charges in connection with this
lending transaction are determined to exceed the maximum amount permitted by
law, then the Founder agrees that (a) the amount of interest or charges payable
pursuant to this lending transaction shall immediately be, and be deemed to be,
reduced to the maximum amount permitted by applicable law and (b) any excess
amount previously collected from the Founder in connection with this lending
transaction that exceeded the maximum amount permitted by law, will be credited
against the principal balance then outstanding hereunder. If the outstanding
principal balance hereunder has been paid in full, the excess amount will
immediately be refunded to the Founder.
14. TITLES AND HEADINGS. Titles and headings of sections of
this Note are for convenience of reference only and shall not affect the meaning
or interpretation of any provision of this Note.
15. GOVERNING LAW. This Note shall be construed in accordance
with the domestic laws of the State of New Jersey, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of New
Jersey or any other jurisdiction) that would
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cause the application of the laws of any jurisdiction other than the State of
New Jersey.
16. WAIVER OF JURY TRIAL. THE FOUNDER (AND, BY ITS ACCEPTANCE
OF THIS NOTE, THE COMPANY) XXXXXX XXXXXX, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION
WITH, OR ARISING OUT OF THIS NOTE OR THE VALIDITY, PROTECTION, INTERPRETATION,
COLLECTION OR ENFORCEMENT THEREOF.
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IN WITNESS WHEREOF, the Founder has executed and delivered
this Promissory Note as of the date specified above.
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