PROMISSORY NOTE
September 28, 2000
Redwood City, California $250,000.00
The following sets forth the purpose of this Note, the
obligations of the maker of this Note, the rights of the Holder of this Note,
and the conditions to which this Note is subject, to which the Holder hereof, by
the acceptance of this Note, agrees:
Whereas, the Company has advanced Samir Arora the amount of
$250,000 against repayment from the proceeds that he obtains from the sale of
any of his shares of common stock of the Company.
Therefore, Arora, for value received, promises to pay to the
Company or any person or entity to whom this Note has been endorsed for payment,
or order (collectively the "Holder"), the principal sum of Two Hundred Fifty
Thousand Dollars ($250,000) (the "Principal Sum"), and interest on the principal
sum from time to time remaining unpaid hereon from the date of this Note until
paid in full; at the rate of 6.45% per annum, which is the Applicable Federal
Rate as determined under Section 1274(d) of the Internal Revenue Code of 1986,
as amended, for debt instruments of this kind said principal sum and accrued
interest to be paid in full on or before the second anniversary of the date of
this Note (the "Maturity Date"). Interest shall accrue and compound annually on
the unpaid balance, computed on the basis of a 360-day year. In the event that
any payment of principal or interest under this Note is made prior to the
Maturity Date for any reason, the amount of any interest payable on any
outstanding principal amount for a short period of less than one year (the
compounding period under this Note) shall be equal to the aforementioned
interest rate multiplied by a fraction, the numerator of which is equal to the
number of months in such short period and the denominator of which is 12 months.
In no event shall interest be charged under this Note at a rate in excess of the
maximum rate allowed by law.
All principal and interest must be paid in lawful money of the
United States of America at the address of the Holder of this Note as shown on
the books of the Company by the Maturity Date. The undersigned shall have the
right to prepay all or any portion of the indebtedness represented hereby
without premium or penalty upon 10 days' notice.
1. Payment from Stock Sale Proceeds of Shares. Arora agrees to
pay over to the Holder the net proceeds after payment of commissions from the
sale of any of his shares of Company common stock until the principal sum and
all accrued and unpaid interest thereon have been paid in full. Arora further
agrees to direct and authorize any broker/dealer or other institution that sells
his shares of common stock (the "selling broker") for his account to pay
directly to the Holder the net proceeds from the sale of his shares of common
stock to which the
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Holder is entitled, and to take all steps necessary to have such net proceeds
paid directly to the Holder, including, but not limited to, notifying the Holder
of the identity of the selling broker and completing and signing all
documentation requested by the selling broker and the Holder in order to effect
direct payment of the proceeds due hereunder to the Holder.
2. Term. This Note shall remain in effect and Arora's
obligation under this Note shall remain until the principal sum and interest
thereon have been repaid in full.
4. Governing Law. This Note shall be governed by and construed
and enforced in accordance with the laws of the State of California.
5. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or on the day sent by facsimile transmission if a true
and correct copy is sent the same day by first class mail, postage prepaid, or
by dispatch by an internationally recognized express courier service, or at such
other address as any party may designate by ten days' advance written notice to
the other party.
6. Severability. If any provision of this Note should be found
to be invalid or unenforceable, all other provisions shall nevertheless remain
in full force and effect to the maximum extent permitted by law.
7. Modification. This Note and any of its terms may be
changed, waived or terminated only by a written instrument signed by the party
against whom enforcement of that change waiver or termination is sought.
8. Attorneys' Fees. In any action to enforce this Note, the
prevailing party shall be entitled to recover all of its attorneys' fees, costs
and related expenses.
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Typed Name: Samir Arora
Address:
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