Exhibit 10.13
LOAN FORGIVENESS AGREEMENT
This Loan Forgiveness Agreement, dated March 29, 2002, is by and between
Semotus Solutions, Inc., a Nevada Corporation ("Semotus") and Xxxxxxx XxXxxx.
A. WHEREAS, on February 29, 2000, Semotus and Xxxxxxx XxXxxx executed
and entered into a Secured Recourse Promissory Note in the original principal
amount of one hundred thousand dollars ($100,000) (the "Note"). Except as
otherwise set forth herein, capitalized terms shall have the meanings ascribed
to them in the Note.
B. Subject to the terms and conditions set forth herein, Xx. XxXxxx
and Semotus desire to provide for the loan forgiveness of the principal and
interest due under the Note.
NOW, THEREFORE in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the parties hereby agree as
follows:
1. Loan Forgiveness. At the close of business on March 29, 2002, all
principal and interest due under the Note shall be automatically and immediately
forgiven and cancelled, as and in consideration for Xx. XxXxxx'x previous six
years of dedicated performance as CEO of the corporation, and continued
commitment to the Company, which is exemplified by the following two examples:
(i) there has not been any existing or uncured default by Xx. XxXxxx of any
material obligation under his Employment Agreement, and (ii) Xx. XxXxxx has not
sold a share of his stock in the Company over the past six years of his
employment with the Company.
As consideration for the foregoing performance and committment of Xx. XxXxxx, at
the close of business on the 29th of March 2002, Semotus shall cancel the Note,
record such cancellation on the books and records of Semotus and deliver the
original Note, xxxx cancelled, to Xx. XxXxxx, provided however, that Semotus's
failure to perform any of the foregoing acts shall not in any way affect the
automatic cancellation of the debts and obligations of Xx. XxXxxx under the
Note. Concurrently, Xx. XxXxxx shall be forever and unconditionally released
from all obligations and liabilities whatsoever under the Note.
2. Jurisdiction, Venue and Governing Law. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of California (regardless of that jurisdiction or any other jurisdiction's
choice of law principles). To the extent permitted by law, the parties hereto
agree that all actions or proceedings arising in connection herewith, shall be
litigated in the state and federal courts located in the State of California,
and each party hereby waives any right it may have to assert the doctrine of
Forum Non Conveniens or to abject to venue. The parties each hereby stipulate
that the state and federal courts located in the County of Santa Xxxxx, State of
California, shall have personal jurisdiction and venue over each party for the
purpose of litigating any such dispute, controversy or proceeding arising out of
or related to this Agreement. To the extent permitted by law, service of process
sufficient for personal jurisdiction in any action against either party may be
made by registered or certified mail, return receipt requested, to its address
indicated on the first page hereof.
3. Validity. If any one or more of the provisions ( or any part
thereof) of this Agreement shall be held to be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions (or any part thereof) shall not in any way be affected or impaired
thereby.
4. Attorneys' Fees. The prevailing party shall be entitled to recover
from the loosing party its attorneys' fees and cost incurred in any action or
proceeding, including arbitration, brought to interpret this Agreement or to
enforce any right arising out of this agreement.
5. No Waiver of Rights. The delay or failure of either party to
enforce at any time any provision of this Agreement shall in no way be
considered a waiver of any such provision, or any other provision, of this
Agreement. No waiver of, or delay or failure to enforce any provision of this
Agreement shall in any way be considered a continuing waiver of any such
provision, or any other provision of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Loan Forgiveness
Agreement as of the date first set forth above.
SEMOTUS: SEMOTUS SOLUTIONS, INC.
By: /s/ Xxxx Xxxxxx
Xxxx Xxxxxx, Secretary
XX. XXXXXX: /s/ Xxxxxxx XxXxxx
Xxxxxxx XxXxxx
