Exhibit 10.60
SECURED PROMISSORY NOTE
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October 8, 2001
$15,495.68 Westboro, Massachusetts
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For value received, Xxxxx X. Xxxx (the "Borrower") promises to pay to the
order of ePresence, Inc., a Massachusetts corporation (the "Company"), at the
offices of the Company or such other place as the Company hereafter shall
designate Fifteen Thousand Four Hundred Ninety-Five Dollars and Sixty-Eight
Cents ($15,495.68). This Promissory Note is being issued pursuant to Amendment
No. 1 to the Employment Letter between the Borrower and the Company, dated July
26, 2001. Simple interest shall accrue on the unpaid balance from time to time
outstanding, which interest rate shall be adjusted each month to the then
applicable Federal rate, beginning on the date hereof. Except as otherwise
provided herein, the principal amount of and all accrued interest on this Note
shall be repaid in full 90 days after the Borrowers employment with the Company
is terminated; provided (a) subject to the Borrower's continued employment by
the Company on an annual anniversary date of this note, 20% of the principal
amount of this Note plus interest accrued during each annual period shall be
forgiven by the Company, and (b) if a Change in Control Date (as defined in
Paragraph 2(d) of that certain Restricted Stock Agreement between the Borrower
and the Company dated October 8, 1999 (except without the reference to
"occur[ing] on or prior to October 8, 2001")) occurs while the Borrower is, or
deemed to be under such Change in Control provision, employed by the company,
the amount of this Note plus all accrued interest outstanding shall be forgiven
by the Company. The Borrower shall repay this Note prior to the aforementioned
dates as provided below.
The Borrower acknowledges and agrees that this Note must be repaid in full
prior to the due date, upon the sale by the Borrower of any of the Shares.
The Borrower also acknowledges and agrees that the payment of this Note is
secured by a security interest in 15,000 shares of common stock of the Company,
pursuant to a pledge agreement between the Company and the Borrower dated
October 8, 2001 (the "Pledge Agreement"). This Note is with recourse to the
Borrower for the entire principal sum borrowed, plus interest, and is subject
to, and secured by, and entitled to the benefits of the Pledge Agreement.
At the option of the Company, this Note shall become immediately due and
payable without notice or demand upon the occurrence at any time of any of the
following events ("Events of Default"):
(1) If Xxxxxxxx is not paying his debts as they become due, becomes
insolvent, files or has filed against him a petition under any chapter
of the United States Bankruptcy Code, 11 U.S.C. (S) 101 et seq. (or
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any similar petition under any insolvency law of any jurisdiction),
proposes any liquidation, composition or financial reorganization with
his creditors, makes an assignment or trust mortgage for the benefit
of creditors, or if a
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receiver, trustee, custodian or similar agent is appointed or takes
possession with respect to any property or business of the Borrower;
or
(2) The occurrence of any Default (as defined therein) under the Pledge
Agreement.
Upon the occurrence of any of the Events of Default, the Company shall have
then, or at any time thereafter, all of the rights and remedies afforded by the
Uniform Commercial Code as from time to time in effect in the Commonwealth of
Massachusetts or afforded by other applicable law or under this Note or the
Pledge Agreement.
In no event shall any interest charged, collected or reserved under this
Note exceed the maximum rate then permitted by applicable law and if any such
payment is paid by the Borrower such payment shall be treated as a payment of
principal.
All payments by the Borrower under this Note shall be made without set-off
or counterclaim and shall be free and clear and without deduction or withholding
for any taxes or fees of any nature whatever, unless the obligation to make such
deduction or withholding is imposed by law. The Borrower shall pay and save the
holder harmless from all liabilities with respect to or resulting from any delay
or omission to make any such deduction or withholding required by law.
Whenever any amount is paid under this Note, all or part of the amount paid
may be applied to principal, interest, premium or penalty in such order and
manner as shall be determined by the holder in its discretion.
No reference in this Note to any other document shall impair the obligation
of the Borrower, which is absolute and unconditional, to pay all amounts under
this Note strictly in accordance with the terms of this Note.
No delay or omission on the part of the Company in exercising any right
hereunder shall operate as a waiver of such right or of any other right of such
Company, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of the same or any other right on any future occasion.
The Borrower waives presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement hereof and also waives any delay on the part of the
Company. No discharge or release of any other party primarily or secondarily
liable hereon shall discharge or otherwise affect the liability of the Borrower
to the Company.
None of the terms or provisions of this Note may be excluded, modified, or
amended except by a written instrument duly executed on behalf of the Borrower
expressly referring hereto and setting forth the provision so excluded, modified
or amended.
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The Borrower will pay on demand all costs of collection, including
reasonable attorney's fees, incurred by the Company in enforcing the obligations
under or in connection with this Note or the Pledge Agreement.
This Note shall be binding upon the Borrower and each endorser and
guarantor hereof and upon their heirs, successors and representatives, and shall
inure to the benefit of the Company and its successors, endorsees and assigns.
This Note may be prepaid in whole or in part at any time or from time
to time with the consent of the holder, with the giving of such consent to be in
the sole discretion of the holder, provided that the Company shall retain the
security interest in the Shares under the Pledge Agreement until the principal
amount and accrued interest under this Note are paid in full. Any prepayment
shall be without premium or penalty.
The Borrower irrevocably submits to the jurisdiction of the courts of
the Commonwealth of Massachusetts and the United States District Court for the
District of Massachusetts for the purpose of any suit, action or other
proceeding brought by the Company arising out of or relating to this Agreement,
and the Borrower waives and agrees not to assert by way of motion, as a defense
or otherwise in any such suit, action or proceeding, any claim that the Borrower
is not personally subject to the jurisdiction of the courts of the Commonwealth
of Massachusetts or the United States District Court for the District of
Massachusetts or that the Borrower's property is exempt or immune from execution
or attachment, either prior to judgment or in aid of execution, that the suit,
action or proceeding is brought in an inconvenient forum or that the venue of
the suit, action or proceeding is improper, or that this Note or the subject
matter hereof may not be enforced in or by such court.
This Note shall be governed by, and construed and enforced in
accordance with, the substantive laws of the Commonwealth of Massachusetts,
without regard to its principles of conflicts of laws. This Note shall be deemed
to be under seal.
THE BORROWER HEREBY WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING IN CONNECTION WITH ALL MATTERS CONTEMPLATED HEREBY AND DOCUMENTS
EXECUTED IN CONNECTION HEREWITH.
WITNESS: BORROWER:
Signed in my Presence:
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxx
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Name Xxxxx X. Xxxx
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