Exhibit 10.36
PROMISSORY NOTE
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FOR VALUE RECEIVED, ________________ (the "Executive"), a resident
of __________ promises to pay to the order of Digex, Incorporated, a corporation
organized under the laws of the State of Delaware, with its principal place of
business at One Digex Plaza, 00000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 the
principal sum of $__________ (the "Principal Balance"), together with interest
until paid, as set forth in this Promissory Note (the "Note").
1.0 Interest Rate
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Interest shall accrue and be payable on the outstanding unpaid
Principal Balance of this Note at the fixed interest rate of three and
eighty-two one hundredths percent (3.82%) per annum.
2.0 Principal and Interest Payment; Prepayment
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Unless sooner paid in full, and subject to Digex rights hereunder
to require accelerated payment of this Note upon the occurrence of an Event of
Default, the entire unpaid Principal Balance of this Note, together with all
outstanding and unpaid accrued interest thereon, shall be due and payable on the
earlier of (i) November 1, 2003 or (ii) termination of the Executive's
employment with Digex and/or its subsidiaries, affiliates or successors
(hereafter collectively referred to as the "Company") for any reason including,
but not limited to, termination by the Company with or without cause,
termination as a result of death, or permanent disability, resignation for any
reason or termination resulting from constructive discharge. The Executive's
obligation under this Note will not be affected by any change in control, sale
of assets, sale of stock, merger, share exchange, consolidation, business
combination, reorganization, or change in capitalization, of or involving the
Company. This Note shall inure to the benefit of, and be enforceable by, the
Company. The Executive may prepay this Note, in whole or in part, at any time
without penalty.
3.0 Company Right to Payment Offset
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The Company shall have the right to offset against Executive's
salary and bonus any unpaid Principal Balance payment or interest due November
1, 2003.
4.0 Manner of Payment; Application of Payment
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Payment shall be made in immediately available funds without
set-off or counterclaim or deduction of any kind on the due date of such
payment, and shall be made to the address for notices to the Company. Payment by
check shall be accepted subject to collection in immediately available funds.
Unless otherwise agreed, payment shall be applied as follows: first to
Collection Costs (defined below in this Note) not previously collected from the
Executive by the Company; second to accrued and unpaid interest on this Note;
and third to the Principal Balance of this Note.
5.0 Default; Acceleration
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The occurrence of any of the following events shall be an "Event
of Default" under this Note:
(a) If the Executive shall fail to make a payment of
principal or interest under this Note when due, and
such failure shall continue more than ten (10) days
after the Company gives the Executive written notice
thereof; or
(b) If the Executive shall fail to make any other
payment, or fail to perform any other obligation of
the Executive, under this Note, other than
obligations within the scope of clause (a) of this
Section, and such failure shall continue more than
ten (10) days after the Company gives the Executive
written notice thereof; or
(c) If there shall be filed by or against the Executive
any petition under the United States Bankruptcy Code
or any similar federal or state statute; or
(d) Commencement of any proceeding under any federal or
state statute or rule providing for the relief of
debtors, composition of creditors, arrangement,
reorganization, receivership, liquidation or any
similar event by or against the Executive.
Upon the occurrence of an Event of Default, the unpaid Principal
Balance with interest and all other sums evidenced by this Note shall, at the
option of the Company and in the Company's discretion, become immediately due
and payable. Upon the occurrence of an Event of Default, the Company shall have
all rights or remedies available at law or equity.
6.0 Costs
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If the Executive shall default in payment of this Note and the
Company refers this Note to an attorney who is not a salaried employee of the
Company for collection, the Company may charge and collect from the Executive
reasonable attorneys' fees and all court costs and other collection costs
incurred by the Company relating to the Executive's default (attorneys' fees and
costs are referred to in this Note as "Collection Costs").
7.0 Notices
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Any notice required or permitted by or in connection with this
Note shall be in writing and shall be made by hand delivery, or by overnight
delivery service, or by certified mail, return receipt requested, postage
prepaid, addressed to the parties at the appropriate address set forth on the
first page of this Note or to such other address as may be hereafter specified
by written notice by the parties to each other. Notice shall be considered given
as of the earlier of the date of actual receipt, or the date of the hand
delivery, or one (1) business day after delivery to an overnight delivery
service, or three (3) business days after the date of mailing, independent of
the date of actual delivery or whether delivery is ever in fact made, as the
case may be, provided the giver of notice can establish that notice was given as
provided herein. Notwithstanding the aforesaid procedures, any notice or demand
upon the Executive, in fact received by the Executive, shall be sufficient
notice or demand.
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8.0 Certain Waivers
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As to this Note, the Executive waives all applicable exemption
rights, whether under any state constitution, homestead laws or otherwise, and
also waives valuation and appraisement, presentment, notice of dishonor, and
protest, notice of demand and nonpayment of this Note, and notice of
acceleration and expressly agrees that the maturity of this Note, or any payment
under this Note, may be extended from time to time without in any way affecting
the liability of the Executive.
9.0 Preservation of Company Rights
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No failure on the part of the Company to exercise any right or
remedy hereunder, whether before or after the happening of an Event of Default
shall constitute a waiver thereof, and no waiver of any past Event of Default
shall constitute waiver of any future default or of any other Event of Default.
No failure to accelerate the indebtedness evidenced hereby by reason of any
Event of Default hereunder, or acceptance of a past due payment, or indulgence
granted from time to time, shall be construed to be a waiver of the right to
insist upon prompt payment thereafter, or shall be deemed to be a novation of
this Note or as a reinstatement of the indebtedness evidenced hereby or as a
waiver of such right or acceleration or any other right, or be construed so as
to preclude the exercise of any right that the Company may have, whether by the
laws of the State of Mississippi, by agreement, or otherwise; the Executive
hereby expressly waives the benefit of any statute or rule of law or equity that
would produce a result contrary to or in conflict with the foregoing.
10.0 Amendments
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This Note may not be amended orally, but only by an agreement in
writing signed by the party against whom such agreement is sought to be
enforced.
11.0 Severability
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In case any provision or any part of any provision contained in
this Note 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 or remaining part of the affected provision of this
Note, but this Note shall be construed as if such invalid, illegal, or
unenforceable provision or part thereof had never been contained herein.
12.0 Arbitration
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Any allegation, claim, cause of action, demand or dispute
(collectively referred to as a "Dispute"), directly or indirectly related to
this Note shall be resolved through binding arbitration conducted in accordance
with the American Arbitration Association National Rules for the Resolution of
Employment Disputes, in effect on the date the demand for arbitration is
asserted. In the event that either Party demands arbitration, the Executive and
the Company agree that the proceeding shall be the exclusive, final and binding
forum for the ultimate resolution of any Dispute, subject to any rights of
appeal that either Party may have under the Federal Arbitration Act and/or under
applicable state law dealing with the review of arbitration decisions. The
Dispute shall be heard and determined by one arbitrator who is either a retired
judge or a licensed lawyer, experienced in arbitrating or adjudicating
employment-related Disputes.
13.0 Governing Law
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The validity, construction and effect of this Note, and the rights
of any and all persons having or claiming to have any interest under this Note,
shall be determined exclusively in accordance with the laws of the State of
Maryland, without regard to its provisions concerning the applicability of laws
of other jurisdictions. Any arbitration with respect hereto will be brought in
the State of Maryland.
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IN WITNESS WHEREOF, and intending to be legally bound hereby the
Executive executes this Note under seal.
WITNESS:
_____________________________ ________________________________(SEAL)
_______________ of ____________, ____________ of _____________, to wit:
On this the _______ day of _____________, 2001, before me, the
undersigned officer, personally appeared ________________________________, known
to me (or satisfactorily proven) to be the person whose name is subscribed to
the within instrument, and acknowledged that he executed the same for the
purposes therein contained.
In witness whereof I hereunto set my hand and official seal.
_______________________________________
Notary Public
My commission expires: ______________
Received by:
_____________________________________ for ___________________________________
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