PROMISSORY NOTE - (Joel Gayner)
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$25,000.00 5/02/00
For value received, the undersigned Joel Gayner, an individual ("Borrower"),
promises to pay to the order of 3Dshopping.com ("Lender"), at 308 Washington
Boulevard, Marina del Rey, California, 90292 (or at such other place as Lender
may designate in writing), the non-interest bearing sum of $25,000.00 pursuant
to this Promissory Note ("Note"). This Note is intended to provide Borrower with
an advance ("Loan") against future commissions (or severance payments if
Borrower's employment with Employer is involuntarily terminated) payable by
Lender to Borrower in connection with that Offer Letter ("Offer Letter") dated
as of February 7, 2000, between Employer and Borrower regarding Borrower's
employment with Lender as Senior Vice President, Sales and Marketing, which is
attached hereto.
1. Repayment Date: Subject to forgiveness of the Loan as provided below, the
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Loan shall be payable in full on the date which is the earlier of: (A)
immediately upon Borrower's entitlement to commissions payable by Lender to
Borrower sufficient to repay the Loan as provided in the Offer Letter (i.e.,
Borrower's earned commissions will be used to offset the Loan); or (B)
Borrower's termination of employment with Lender, in which case Borrower's
severance payments pursuant to the Offer Letter will be used to offset the Loan
("Loan Payment Date").
2. Forgiveness: Notwithstanding anything to the contrary herein, Borrower's
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obligation to repay the Loan pursuant to this Note shall be extinguished as
follows:
1) If Borrower's employment with Employer is terminated, then the amount
of the Loan is forgiven at the rate of $7,500 monthly over 3.33
months, which forgiveness accrues only during the period of continued
employment (i.e., for termination purposes, the Loan is fully
forgiven after 3.33 months from the date of this Note, which
forgiveness accrues only during the period of continued employment).
If such termination occurs, then Borrower shall immediately repay any
outstanding amount of the Loan to Employer upon Borrower's
termination date; provided that, if Borrower is involuntarily
terminated by Employer, then Employer shall offset Borrower's
severance payments pursuant to the Offer Letter for any outstanding
portion of the Loan; or
2) If Borrower continues to be employed with Employer, the Loan is
forgiven upon the date which is one (1) year from the date of the
Offer Letter (i.e., the Loan is fully forgiven on February 7, 2001;
Employer can no longer offset Borrower's earned commissions in
connection with repayment of the Loan following that date).
3. Payment Terms: If any payment obligation under this Note is not paid by the
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Loan Payment Date, Borrower promises to pay all costs of collection, including
reasonable attorney fees, whether or not a lawsuit is commenced as part of the
collection process. All payments on this Note shall be paid in the legal
currency of the United States. Borrower waives presentment for payment, protest,
and notice of protest and nonpayment of this Note.
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3. Default: If any of the following events of default occur, the outstanding
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amount of the Loan shall become due immediately, without demand or notice:
1) the failure of the Borrower to repay any outstanding portion of the
Loan on or before the Loan Payment Date;
2) the death of the Borrower;
3) the filing of bankruptcy proceedings involving the Borrower as a Debtor;
4) the application for appointment of a receiver for the Borrower;
5) the making of a general assignment for the benefit of the Borrower's
creditors;
6) the insolvency of the Borrower; and
7) the misrepresentation by the Borrower to the Lender for the purpose of
obtaining or extending credit.
4. Severability: If any one or more of the provisions of this Note are
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determined to be unenforceable, in whole or in part, for any reason, the
remaining provisions shall remain fully operative.
5. No Waiver: No renewal or extension of this Note, delay in enforcing any right
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of the Lender under this Note, or assignment by Borrower of this Note shall
affect the liability of the Borrower. All rights of Lender under this Note are
cumulative and may be exercised concurrently or consecutively at Lender's
option.
6. Applicable law: This Note shall be construed in accordance with the laws of
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the State of California.
ACCEPTED AND AGREED:
JOEL GAYNER ("Borrower")
By:
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Date
3DSHOPPING.COM ("Lender")
By:
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Title Date
