Exhibit 10.4
------------
PROMISSORY NOTE
---------------
$ 400,735.74
----------
MAY 5, 2000
WESTBORO, MASSACHUSETTS
-----------------------
For value received, XXXXXXX X. XXXXX (the "Borrower") promises to pay to
the order of Banyan Systems Incorporated, a Massachusetts corporation (d/b/a
ePresence) (the "Company") at the offices of the Company or such other place as
the Company hereafter shall designate Four Hundred Thousand Seven Hundred
Thirty-Five Dollars and Seventy-Four Cents ($400,735.74) to satisfy his federal
and state tax obligations with respect to the issuance to him of Sixty-Four
Thousand Shares (the "Restricted Shares") of the Company's Common Stock at $0.01
per share, pursuant to the Executive Officer Restricted Stock Agreement dated
October 16, 1998. Interest shall accrue on a daily basis on the unpaid balance
from time to time outstanding at the rate of prime less 1% per annum, beginning
May 5, 2000 or the day after SEC restrictions on the sale of these shares
lapses, whichever is later. The principal and all accrued interest of this Note
shall be repaid in full on May 5, 2001; provided however, that the Borrower
shall repay this Note before such date as provided below.
The Borrower acknowledges that this Note must be repaid in full prior to
the due date upon the sale by the Borrower of the 64,000 Restricted Shares of
Common Stock of the Company issued to the Borrower on April 16, 2000.
At the option of the Company, this Note shall become immediately due and
payable without notice or demand on the occurrence at any time of any of the
following events ("Events of Default"):
(1) Xxxxxxxx's voluntary termination of his employment with the Company for any
reason prior to the repayment in full of the principal and any accrued
interest due and payable on this Note; or
(2) the institution by the Borrower of any proceedings under the United States
Bankruptcy Code or the pendency of any bankruptcy or insolvency proceeding
against the Borrower for a period of 60 days from the institution thereof
or the making by the Borrower of an assignment for the benefit of
creditors.
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.
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 holder as a payment of principal.
-1-
All payments by the Borrower under this Note shall be made without set-off
or counterclaim and 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 interest 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.
The Borrower will pay on demand all costs of collection, including
reasonable attorney's fees, incurred by the Company in enforcing the obligations
created by this Note.
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 shall be governed by, and construed and enforced in accordance
with, the substantive laws of The Commonwealth of Massachusetts, without regard
to its principled of conflicts of laws. This Note shall be deemed to be under
seal.
WITNESS: BORROWER:
Signed in my Presence:
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxxx X. Xxxxx
-------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxx
-2-
