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EXHIBIT 10.40
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HOME LOAN AGREEMENT
This Loan Agreement ("Agreement") dated effective as of January 10,
1997, is by and between Molecular Dynamics, Inc., a Delaware corporation (the
"Company"), and Xxx Xxxxxxx (the "Borrower").
RECITALS
The Borrower desires to borrow and the Company is willing to lend to
the Borrower an amount not to exceed $400,000 on a secured basis under the
terms and conditions of this Agreement.
NOW THEREFORE, the Company and the Borrower agree as follows:
1. The Loan. Subject to the terms and conditions contained
herein, the Company shall lend to the Borrower an aggregate amount not to
exceed $400,000 (the "Loan") in connection with the Borrower's purchase of a
new home in California, set forth on Schedule A hereto (the "Property"). The
Borrower shall provide the Company with at least five (5) business days notice
of the Borrowers' request prior to funding of the Loan. The Company's
obligation to fund the Loan shall expire, at the Company's option, on the
earlier of (i) six (6) months after the effective date of this Agreement or
(ii) the termination date of Borrower's employment with the Company.
Concurrently with the Company's funding of the Loan, the Borrower shall have
executed and delivered one or more promissory notes in favor of the Company for
an aggregate amount not to exceed $400,000 (the "Notes") substantially in the
form attached hereto as Exhibit A bearing interest at the Applicable Federal
Rate (as defined by Section 1274(d) of the Internal Revenue Code) per annum,
compounded annually. Unpaid principal and interest under the Loan shall be due
and payable on the earlier of, (i) one year after a change of control of the
Company through merger or acquisition, (ii) one year after the voluntary or
involuntary termination of the Borrower's employment with the Company for any
reason, with or without cause (including death or disability), (iii) three (3)
years after the effective date of this Agreement, or (iv) as otherwise set
forth in the Notes or in this Agreement.
2. Security.
(a) Second Deed of Trust. Payment of the Notes shall be
secured by a Second Deed of Trust on the Property substantially in the form
attached hereto as Exhibit B. The Borrower, however, shall remain personally
liable for payment of the Notes, and assets of the Borrower, in addition to the
collateral under the Second Deed of Trust, may be applied to the satisfaction
of the Borrower's obligations hereunder.
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(b) Remedies. In the case of an Event of Default, as
defined and set forth below, the Company shall have the right to accelerate
payment of the Notes as set forth in the Notes, and the Company shall
thereafter be entitled to pursue its remedies, including foreclosure of the
Property, under the Second Deed of Trust. The proceeds of any sale shall be
applied in the following order:
(i) To the extent necessary, proceeds shall be
used to pay all reasonable expenses of the Company in
enforcing this Agreement, including, without
limitation, reasonable attorney's fees and legal
expenses incurred by the Company.
(ii) To the extent necessary, proceeds shall be
used to satisfy any remaining indebtedness under the
Notes.
(iii) Any remaining proceeds shall be delivered to
the Borrower.
(c) Withdrawal or Substitution of Collateral. The
Borrower shall not sell, withdraw, pledge, substitute or otherwise dispose of
all or any part of the Property without the prior written consent of the
Company.
3. Default. The Borrower shall be deemed to be in default of the
Notes in the event (an "Event of Default"):
(a) Payment of principal or interest on the Notes shall
be delinquent for a period of 10 days or more;
(b) The Borrower fails to perform any of the covenants in
this Agreement for a period of 10 days after written notice thereof from the
Company.
(c) The Borrower's representations and warranties to the
Company contained in this Agreement were untrue or incorrect.
4. No Employment Rights. Nothing contained in this Agreement or
in any of the attachments or exhibits hereto is intended or shall be construed
to confer upon the Borrower any rights to employment or continued employment
with the Company, or shall alter in any way the nature of the Borrower's
current employment with the Company.
5. Construction. This Agreement is the result of negotiations
between and has been reviewed by each of the parties hereto and their
respective counsel; accordingly, this Agreement shall be deemed to be the
product of all of the parties hereto, and no ambiguity shall be construed in
favor of or against any one of the parties hereto. The Borrower acknowledges
that the Company has made no representation or warranty to the Borrower
concerning the income tax consequences of the Loan, and the Borrower shall be
solely responsible for ascertaining and bearing such tax consequences.
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6. Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be personally delivered or sent by prepaid
registered or certified mail, return receipt requested, addressed to the other
party at the address shown below or at such other address for which such party
gives notice hereunder. Notices sent by mail shall be deemed to have been
given 72 hours after deposit in the United States mail.
7. Voluntary Execution; Legal Counsel. This Agreement and the
exhibits hereto are executed voluntarily and without any duress or undue
influence on the part or behalf of the parties hereto, with the full intent of
creating the obligations and security interests described herein and therein.
The parties acknowledge that: (a) they have read this agreement and the
exhibits hereto; (b) they have been represented in the preparation,
negotiation, and execution of this Agreement and exhibits hereto by legal
counsel of their own choice or they have voluntarily declined to seek such
counsel; (c) they understand the terms and consequences of this Agreement and
the exhibits hereto, including any federal or state income tax effects, and of
the obligations and security interests they create; and (d) they are fully
aware of the legal and binding effect of this Agreement and the exhibits
hereto.
8. Survival. Each of the obligations of the Borrower hereunder,
and the liability of the Borrower for any failure of the representations or
warranties set forth herein to be accurate and complete, shall survive the
closing of the Loan described herein for the entire term of the Loan.
9. Dispute Resolution. All actions or proceedings relating to
this Agreement shall be maintained in a court located in Santa Xxxxx County,
State of California, and the parties hereto expressly consent to (i) the
personal jurisdiction of the federal and state courts within Santa Xxxxx
County, California, and (ii) service of process being effected upon them by
registered mail sent to the address set forth below.
10. Miscellaneous. This Agreement shall inure to the benefit of
and be binding on the respective heirs, successors and assigns of the parties
hereto. The Borrower may not assign his rights and/or duties under this
Agreement to a third party without the prior written consent of the Company,
which may be withheld in its sole discretion. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of California. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings related to such subject matter. This
Agreement shall not be amended without the written consent of the parties
hereto. In the event that any provision hereof becomes or is declared by a
court of competent jurisdiction to be illegal, unenforceable or void, this
Agreement shall continue in full force and effect without said provision. The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this Agreement. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one instrument.
The parties hereto agree to execute, acknowledge and
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deliver or to cause to have executed, acknowledged and delivered, such other
and further instruments and documents as may reasonably be requested by the
other to carry out the purposes of this Agreement.
The undersigned have executed this Agreement as of the date first
written above.
BORROWER: COMPANY:
MOLECULAR DYNAMICS, INC.,
a Delaware corporation
/s/ Xxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Xxx Xxxxxxx
Title: Director of Finance
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Address: 00 Xxxxx Xxx. Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX Xxxxxxxxx, XX 00000
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SCHEDULE A
00000 Xxxxxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
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EXHIBIT A
NOTE SECURED BY SECOND DEED OF TRUST
$_________ ______________, 1996_
Sunnyvale, California
1. Obligation. For value received, Xxx Xxxxxxx (the "Borrower")
promises to pay to Molecular Dynamics, Inc., a Delaware corporation (the
"Company"), the principal sum of $_____________, together with interest on the
unpaid principal hereof from the date hereof at the rate of ____% per annum,
compounded annually (the "Loan").
2. Payment. Payments of principal and interest on the Loan shall
be made as follows:
$_______ principal amount plus interest accrued to date on this Note
shall be due and payable in equal installments on each of the first, second and
third anniversaries of the date and year first written above, provided that the
third such payment shall include the balance of the principal amount
outstanding plus all accrued interest as of that date, unless accelerated as
provided in Section 3 below. Prepayment of all or any portion of the principal
or interest owing under the Loan may be made at any time without penalty.
Payments of principal and interest shall be made in lawful money of
the United States of America and shall be credited first to the accrued
interest, with the remainder applied to principal. Payments may also be made,
at the election of the Borrower, (i) by offset of pre- tax cash bonuses, if
any, that may be payable from time to time by the Company to the Borrower, (ii)
by payment of the proceeds from the Borrower's sale of Common Stock of the
Company, (iii) by surrender of shares of Common Stock of the Company by the
Borrower for cancellation or (iv) by such other means as the Board of Directors
of the Company may authorize. In the event a payment hereunder is made in
shares of Company Common Stock pursuant to clause (iii) above, the shares
surrendered to the Company shall be valued based upon the closing sale price of
the Company's Common Stock on the Nasdaq National Market (or on such other
stock market or exchange on which the Company's Common Stock is then listed) on
the date the shares are surrendered for payment. The Borrower acknowledges that
he has consulted his own tax adviser with respect to the tax consequences of
selling shares of Common Stock of the Company pursuant to (ii) above or
surrendering shares of Common Stock of the Company for cancellation pursuant to
(iii) above in connection with repayment of the Loan.
3. Acceleration of Obligation. The Loan shall immediately become
due and payable in full upon the earliest of the following: (i) an Event of
Default under the Home Loan Agreement between the Company and the Borrower
dated as of ___________, 1996, as amended (the "Loan Agreement"); (ii) in the
event any required payment hereunder is not made when due [and the continuation
of such default for more than thirty (30) days]; (iii) one year after the
voluntary or
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involuntary termination of the Borrower's employment with the Company for any
reason, with or without cause (including death or disability); (iv) assignment
by the Borrower for the benefit of creditors, or admission in writing of the
Borrower's inability to pay his debts as they become due, or filing a voluntary
petition in bankruptcy or adjudication as a bankrupt or insolvent, or filing
any petition or answer seeking any reorganization, arrangement, composition,
readjustment, dissolution or similar relief under any present or future
statute, law or regulation, or filing any answer admitting or failing to deny
the material allegations of a petition filed against him for any such relief;
(v) the failure of the Borrower to execute a second deed of trust on the
Property as defined in the Loan Agreement (the "Property") within thirty (30)
days of a request from the Company; (vi) the date of any sale, conveyance,
assignment, alienation or any other form of transfer of the Property, or any
part thereof or interest therein, or any divestiture of the Borrower's title or
interest therein in any manner or way, whether voluntary or involuntary,
without the prior written consent of the Company being first obtained or except
as otherwise permitted under the Loan Agreement; or (vii) the occurrence of any
event of default under the Second Deed of Trust securing this Note or any
obligation secured thereby.
4. Security. The proceeds of the Loan evidenced by this Note
were applied solely to the purchase of the Property. Payment of this Note
shall be secured by a Second Deed of Trust on such Property. The Borrower,
however, shall remain personally liable for payment of this Note, and assets of
the Borrower, in addition to the collateral under the Second Deed of Trust, may
be applied to the satisfaction of the Borrower's obligations hereunder.
5. Purpose of Loan. The principal sum represented by this Note
was used by the Borrower to purchase their primary residence in California.
6. Governing Law. This Note shall be governed by and construed
in accordance with the laws of California, without reference to conflict of
laws principles.
7. Attorneys' Fees. If suit is brought for collection of this
Note, the Borrower agree to pay all reasonable expenses, including attorneys'
fees, incurred by the Company in connection therewith whether or not such suit
is prosecuted to judgment.
8. Waiver. No previous waiver and no failure or delay by the
Company in acting with respect to the terms of this Note, the Loan Agreement or
the Second Deed of Trust shall constitute a waiver of any breach, default, or
failure of condition under this Note, the Loan Agreement, the Second Deed of
Trust or the obligations secured thereby. A waiver of any term of this Note,
the Loan Agreement, the Second Deed of Trust or of any of the obligations
secured thereby must be made in writing and shall be limited to express terms
of such waiver.
The Borrower waives presentment, demand, notice of dishonor, notice of
default or delinquency, notice of acceleration, notice of protest and
nonpayment, notice of costs, expenses or losses and interest thereon, notice of
interest on interest, and diligence in taking any action to collect any sums
owing under this Note or in proceeding against any of the rights or interests
in or to properties securing payment of this Note.
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IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
as of the date and year first above written.
"BORROWER"
____________________________
Xxx Xxxxxxx
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