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EXHIBIT 10.25
GENENCOR INTERNATIONAL, INC.
SECURED PROMISSORY NOTE
$_______________ Palo Alto, California
___________ ___, 2000
FOR VALUE RECEIVED, the undersigned, ________________, an
individual ("Borrower"), promises to pay to Genencor International, Inc., a
Delaware corporation ("Lender") the principal amount of ____________________
dollars ($__________), with interest from the date hereof on the unpaid
principal balance under this Note at the rate of 6.71% per annum (on the basis
of a 365-day year and the actual number of days elapsed). The unpaid principal
balance of this Note, together with accrued and unpaid interest thereon (the
"Unpaid Balance") shall be due and payable in twelve-month installments over
four years, commencing on the eighteen-month anniversary of the date the
Company's Common Stock first becomes registered under the Securities Act of 1933
(the "Public Trading Date"), with the amount of each such installment to be the
excess of (i) the amount determined by dividing the Unpaid Balance by the number
of remaining installments over (ii) any "Prepayment Amount" (as defined below)
made within the twelve-month period preceding the date such installment is due.
Notwithstanding the foregoing, the entire Unpaid Balance shall be
due and payable upon the earlier of (i) the occurrence of an event described in
Section 18(a) of the Plan, (subject to Section 18(d) of the Plan) or (ii) sixty
days following ▇▇▇▇▇▇▇▇'s termination of employment with the Company for any
reason.
All payments under this Note shall be made to Lender, in lawful
money of the United States of America and in immediately available funds
delivered to Lender at the offices of Lender at its then principal place of
business or at such other place as Lender shall designate in writing for such
purpose from time to time. If a payment under this Note otherwise would become
due and payable on a Saturday, Sunday or legal holiday, the due date thereof
shall be extended to the next day which is not a Saturday, Sunday or legal
holiday, and interest shall be payable thereon during such extension. All
amounts due under this Note and the Pledge Agreement (as defined below) shall be
payable without defense, set off or counterclaim of the Borrower.
Each payment under this Note shall be applied in the following
order: (i) to the payment of costs and expenses provided for under this Note or
the Pledge Agreement; (ii) to the payment of accrued and unpaid interest; and
(iii) to the payment of outstanding principal. Lender shall have the continuing
and exclusive right to apply or reverse and reapply any and all payments under
this Note.
This Note may be prepaid in whole or in part at any time. Any
such prepayment shall be referred to hereafter as a "Prepayment Amount." Any
Prepayment Amount shall be without premium or penalty except that interest shall
be paid to the date of payment on the principal amount prepaid. Any partial
principal Prepayment Amount under this Note shall be applied against the
installments of principal due under this Note, with no change in the required
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principal amount of the installments due under this Note prior to those
installments prepaid in whole or in part. Interest, however, shall be computed
on the principal balance due after deducting the principal portion of such
Prepayment Amount.
Upon the occurrence of a default under this Note or the Pledge
Agreement, including, without limitation, failure to make any principal or
interest payment by the stated maturity for such payment, interest shall
thereafter accrue on the entire unpaid principal balance under this Note,
including without limitation any delinquent interest which has been added to the
principal amount due under this Note pursuant to the terms hereof, at the rate
set forth herein plus one percent (1%) per annum (on the basis of a 365-day year
and the actual number of days elapsed). In addition, upon the occurrence of a
default under this Note or the Pledge Agreement the Lender may, at its option,
without notice to or demand upon Borrower or any other party, declare
immediately due and payable the entire principal balance hereof together with
all accrued and unpaid interest thereon, plus any other amounts then owing
pursuant to this Note or the Pledge Agreement, whereupon the same shall be
immediately due and payable. On each anniversary of the date of any default
under this Note and while such default is continuing, all interest which has
become payable and is then delinquent shall, without curing the default under
this Note by reason of such delinquency, be added to the principal amount due
under this Note, and shall thereafter bear interest at the same rate as is
applicable to principal, with interest on overdue interest to bear interest both
before and after default, maturity, foreclosure, judgment and the filing of any
petition in a bankruptcy proceeding. In no event shall interest be charged under
this Note which would violate any applicable law.
Notwithstanding anything to the contrary contained in this Note,
▇▇▇▇▇▇▇▇ hereby agrees that ▇▇▇▇▇▇, in enforcing its rights and remedies
hereunder and under any other documents and instruments executed by ▇▇▇▇▇▇▇▇ in
connection herewith, shall have recourse to, and the right to proceed against,
Borrower and any of his assets for any obligation, covenant or agreement of any
kind whatsoever, in an amount equal to the Recourse Portion of the Note. The
Borrower shall have no personal liability for the Non-Recourse Portion of the
Note, and the Non-Recourse Portion of the Note shall be enforceable against the
Borrower only to the extent of the Borrower's interest in the Pledged Stock (as
such term is defined in that certain Genencor International, Inc. Pledge
Agreement, dated as of _____________, 2000, by and between Borrower and Lender
(as amended from time to time, the "Pledge Agreement"). The "Recourse Portion"
of this Note shall mean an amount equal to fifty percent (50%) of the initial
principal amount of this Note, plus interest accrued on such principal amount,
less any payments of accrued and unpaid interest on the Recourse Portion of this
Note, and any payment and prepayment of outstanding principal of the Recourse
Portion of this Note. The "Non-Recourse Portion" of this Note shall mean an
amount equal to fifty percent (50%) of the initial principal amount of this
Note, plus interest accrued on such principal amount, less payments of accrued
and unpaid interest on the Non-Recourse portion of this Note, and any payments
and prepayments of outstanding principal of the Non-Recourse Portion of this
Note. Except as otherwise provided herein, any and all payments of accrued and
unpaid interest, and payments and prepayments of outstanding principal, made by
Borrower shall, unless otherwise designated in writing by Borrower, be deemed to
apply first and
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entirely to the payment of any sums due under the Recourse Portion of this Note,
and then to any other amounts due under this Note.
Upon the occurrence of a default under this Note or the Pledge
Agreement, including, without limitation, failure to make any principal or
interest payment by the stated maturity for such payment, the Lender may, at its
option, apply any and all amounts realized upon foreclosure on the Pledged Stock
first and entirely to the payment of costs and expenses provided for under this
Note and the Pledge Agreement and to repay any then outstanding principal and
accrued and unpaid interest on the Recourse Portion of this Note, and then to
any other amounts due under this Note.
This Note is secured under the Pledge Agreement, and reference is
hereby made to the Pledge Agreement for a description of the nature and extent
of the security for this Note and the rights with respect to such security of
the Lender. Nothing herein shall be deemed to limit the rights of Lender under
this Note or the Pledge Agreement, all of which rights and remedies are
cumulative.
No waiver or modification of any of the terms of this Note shall
be valid or binding unless set forth in a writing specifically referring to this
Note and signed by a duly authorized officer of ▇▇▇▇▇▇, and then only to the
extent specifically set forth therein.
If any default occurs in any payment due under this Note,
Borrower and all guarantors and endorsers hereof, and their successors and
assigns, promise to pay all costs and expenses, including attorneys' fees,
incurred by ▇▇▇▇▇▇ in collecting or attempting to collect the indebtedness under
this Note, whether or not any action or proceeding is commenced. None of the
provisions hereof and none of ▇▇▇▇▇▇'s rights or remedies under this Note on
account of any past or future defaults shall be deemed to have been waived by
▇▇▇▇▇▇'s acceptance of any past due installments or by any indulgence granted by
the Lender to Borrower.
Borrower and all guarantors and endorsers hereof, and their
successors and assigns, hereby waive presentment, demand, diligence, protest and
notice of every kind (except such notices as may be required under the Pledge
Agreement), and agree that they shall remain liable for all amounts due under
this Note notwithstanding any extension of time or change in the terms of
payment of this Note granted by ▇▇▇▇▇▇, any change, alteration or release of any
property now or hereafter securing the payment hereof or any delay or failure by
Lender to exercise any rights under this Note or the Pledge Agreement. Borrower
and all guarantors and endorsers hereof, and their successors and assigns,
hereby waive the right to plead any and all statutes of limitation as a defense
to a demand under this Note to the full extent permitted by law.
This Note shall not be transferred, assigned, pledged or
hypothecated in any manner to any person other than Lender except by operation
of law or upon ▇▇▇▇▇▇▇▇'s written consent.
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In the event that any one or more provisions of this Note shall
be held to be illegal, invalid or otherwise unenforceable, the same shall not
affect any other provision of this Note and the remaining provisions of this
Note shall remain in full force and effect.
This Note shall be governed by and construed in accordance with
the laws of the State of Delaware, without giving effect to the principles
thereof relating to conflicts of law; provided, that Lender reserves any and all
rights it may have under federal law, including without limitation those
relating to the charging of interest.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has caused this Note to be duly
executed the day and year first above written.
By:
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Name:
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Title:
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