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Exhibit 10 (iii)(m)
SECURED PROMISSORY NOTE
AND PLEDGE AGREEMENT
$_________________ Date:_____________
Tulsa, Oklahoma
FOR VALUE RECEIVED, I _________________________ ("Maker"), promise to
pay to the order of THE XXXXXXXX COMPANIES, INC. ("Xxxxxxxx"), a Delaware
corporation, at its office in Tulsa, Oklahoma, the principal sum
___________________________________($____________) plus interest from the date
hereof at the rate hereinafter set forth. Payments of principal and interest due
under this Secured Promissory Note and Pledge Agreement (the "Note") shall be
made in lawful money of the United States of America and shall be paid in
accordance with the following terms and conditions:
1. This Note shall mature and the principal amount hereof shall be due
and payable in full at the earliest of:
(a) _____________________
(b) Thirty (30) days following Maker's termination of
employment with Xxxxxxxx or its subsidiaries for any reason; or
(c) Maker's failure to make any payment of principal or
interest within fifteen (15) days after such payment is due.
This Note may be prepaid in full at any time. No partial prepayments shall be
made without the prior consent of the holder of this Note.
2. The unpaid principal amount of this Note outstanding from time to
time shall bear interest at a per annum rate of ____%, as shall be fixed by
Xxxxxxxx after the execution of this Note at a rate equal to the "Minimum
Interest Rate". Interest shall be payable on December 31 of each year; provided,
however, that at such time as the unpaid principal amount of this Note is
payable in full, all unpaid interest accruing to such date also shall be paid.
3. For purposes of this Note, "Minimum Interest Rate" shall mean the
per annum equivalent of the lowest interest rate that can be stated as of the
date of this Note under applicable federal income tax laws (disregarding any de
minimis exception recognized under such laws) without imputing income to the
Maker or creating original issue discount or its equivalent.
4. For the purpose of securing the payment of the principal of and
interest on this Note, Maker acknowledges that this Note shall be deemed a full
recourse Note secured by any and all assets now or hereafter acquired by Maker,
and, specifically, Maker does hereby pledge, transfer and deliver a stock
certificate to Xxxxxxxx representing ________ shares of Xxxxxxxx Common Stock,
together with a stock power endorsed by Maker in blank. Such certificate shall
be registered in the name of Maker and is represented by Maker to be owned free
and clear of any claims or liens other than the claim or lien hereby created and
acknowledged. Maker shall retain the voting and dividend rights to the
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Xxxxxxxx Common Stock while the certificate is in the possession of Xxxxxxxx. In
the event of default under the terms of this Note, Maker does hereby constitute
and appoint the Secretary of Xxxxxxxx as the attorney-in-fact of Maker to
transfer the stock on the books of Xxxxxxxx, with full power of substitution in
the premises. Maker further agrees that such stock shall not be released to
Maker until all indebtedness, including both the principal of and interest on
this Note, has been paid in full to Xxxxxxxx, except at the discretion of
Xxxxxxxx, if another stock certificate that represents other shares of Xxxxxxxx
Common Stock owned by Maker is substituted as security. On and after the
maturity of this Note by its terms, Xxxxxxxx is hereby expressly authorized by
Maker, at any time and from time to time and with or without notice, to sell,
transfer and deliver the whole or any part of such stock, either at public or
private sale, through any broker or at any exchange, whether within or without
the State of Oklahoma, and with or without advertising the time or place of such
sale. Maker further agrees that, after deducting all costs and expenses of any
such sale, including reasonable attorney's fees, and after the payment in full
of the principal and interest due on this Note, the balance, if any, of the
proceeds of such sale may be applied to the payment of any other indebtedness
which Maker owes to Xxxxxxxx, whether due or not due, whether direct or
contingent, and whether owing individually or in connection with others not
parties hereto. After payment of all of the aforesaid amounts to Xxxxxxxx, any
remaining balance shall be paid to Maker. To the extent such balance is less
than the principal and interest due on this Note, Xxxxxxxx may make claim
against any and all other assets of Maker to the extent of the payment owed to
Xxxxxxxx under this Note.
5. Annually, in March of each year, the Company shall conduct a review
of the adequacy of the collateral pledged hereunder in the form of Xxxxxxxx
Common Stock. If the value of the collateral is determined to be less than or
equal to the outstanding balance of the loan, Maker shall be required to pledge
additional Common Stock to restore the collateral to 125 percent of the loan
balance or, alternatively, make a cash payment to the Company to reduce the
outstanding balance of the loan to equal 80 percent of the value of the
collateral. If the value of the collateral is determined to exceed the
outstanding balance of the loan by 50 percent or more, Maker shall be entitled
to borrow an additional sum from the Company up to an amount which, when added
to the current loan balance, shall equal 80 percent of the value of the
collateral at such time.
6. This Note has been executed by Maker to evidence the obligation of
Maker to make certain payments to Xxxxxxxx or its assignee. This Note is subject
to all of the terms and conditions of certain stock option agreement(s) between
Maker and Xxxxxxxx.
7. Subject only to any limitation imposed by applicable law, Maker also
agrees to pay all expenses, including reasonable attorneys' fees and legal
expenses, incurred by the holder of this Note in attempting to collect any
amounts payable hereunder which are not paid when due, whether by acceleration
or otherwise.
8. This Note is made under and governed by the laws of the State of
Oklahoma, without regard to conflict of laws principles.
9. Maker hereby waives presentment, demand, notice of dishonor and
protest.
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