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EXHIBIT 10.33(a)
EMPLOYEE LOAN PROMISSORY NOTE
$
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FOR VALUE RECEIVED, _________________ (referred to herein as "MAKER"),
having a mailing address of ____________________________, promises to pay to the
order of TeleCommunication Systems, Inc., a corporation organized and validly
existing under the laws of the State of Maryland (referred to herein as "PAYEE,"
which term shall also include any subsequent holder of this Note), having a
mailing address of 275 West Street, Annapolis, MD 21401, the principal sum of
___________________ Dollars ($______________), together with interest until
paid, as set forth in this Note.
1. Interest Rate. Interest shall accrue and be payable on the
outstanding unpaid principal balance of this Note at the fixed interest rate of
six percent (6%) per annum, compounded annually.
2. Principal and Interest Payments. Maker shall pay to Payee four
(4) quarterly installment payments of principal and interest on this Note in the
amounts as follows:
August 1, 2001: $ Dollars
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November 1, 2001: $ Dollars
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February 1, 2002: $ Dollars
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May 1, 2002: $ Dollars
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Unless sooner paid in full, the entire unpaid principal balance of this Note,
together with all outstanding and unpaid accrued interest on this Note, shall be
due and payable on May 1, 2002.
3. Manner of Payment. All payments shall be made in U.S. dollars in
immediately available funds without set-off or counterclaim or deduction of any
kind on the due dates of such payments. Payments shall be made to the address
set forth herein for notices to Payee. Any payments by check shall be accepted
subject to collection in immediately available funds. Payments shall be applied
first to Collection Costs (herein defined), second to accrued interest, and
third to principal of this Note.
4. Prepayment. Maker shall be privileged to prepay this Note in
whole or in part at any time without premium.
5. Collateral. This Note is secured by that certain Pledge
Agreement dated ___________ made by Maker (as Pledgor) in favor of Payee (as
Pledgee) pursuant to which Maker has pledged to Payee, and granted to Payee a
security interest in, ________ shares of Class A Common Stock of Payee owned by
Maker and options to purchase _______ shares of the Class A Common Stock of
Payee granted to the Maker on _______ (referred to herein as the "PLEDGE
AGREEMENT," which term also refers to the Pledge Agreement as it may be amended
and extended from time to time, and including any replacements or substitutes
therefor from time to time).
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6. Default; Acceleration. The occurrence of any of the following
events shall be an "EVENT OF DEFAULT" under this Note and the Pledge Agreement:
(a) If Maker shall fail to make a payment of principal or
interest under this Note when due, and such failure shall continue more
than ten (10) days after Payee gives Maker written notice thereof; or
(b) If Maker shall fail to make any other payment, or fail
to perform any other obligation of Maker, under this Note or the Pledge
Agreement, other than obligations within the scope of clause (a) of this
Section, and such failure shall continue more than ten (10) days after
Payee gives Maker written notice thereof; or
(c) If Maker's employment with Payee shall terminate
(voluntarily or involuntarily) for any reason; or
(d) If there shall be filed by or against Maker any petition
under the United States Bankruptcy Code or any similar federal or state
statute; or
(e) Commencement of any proceeding under any federal or
state statute or rule providing for the relief of debtors, composition
of creditors, arrangement, reorganization, receivership, liquidation or
any similar event by or against Maker; or
(f) The breach of any representation or warranty contained
in the Pledge Agreement.
Upon the occurrence of an Event of Default, the unpaid principal with interest
and all other sums evidenced by this Note shall, at the option of Payee and in
Payee's discretion, become immediately due and payable. Upon the occurrence of
an Event of Default, the Payee shall also have Payee's rights and remedies
available under the Pledge Agreement, this Note and any other rights or remedies
available at law or equity.
7. Collection Costs. If Maker shall default in payment of this
Note, or under the Pledge Agreement which secures this Note, and Payee refers
this Note to an attorney who is not a salaried employee of Payee for collection,
Payee may charge and collect from Maker reasonable attorneys fees and all court
costs and other collection costs actually incurred by Payee relating to Maker's
default (such attorneys fees and costs are referred to in this Note as
"COLLECTION COSTS").
8. Notices. Any notice required or permitted by or in connection
with this Note shall be in writing and shall be made by hand delivery, or by
overnight delivery service, or by certified mail, return receipt requested,
postage prepaid, addressed to the parties at the appropriate address set forth
on the first page of this Note or to such other address as may be hereafter
specified by written notice by the parties to each other. Notice shall be
considered given as of the earlier of the date of actual receipt, or the date of
the hand delivery, or one (1) business day after delivery to an overnight
delivery service, or three (3) business days after the date of mailing,
independent
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of the date of actual delivery or whether delivery is ever in fact made, as the
case may be, provided the giver of notice can establish that notice was given as
provided herein. Notwithstanding the aforesaid procedures, any notice or demand
upon Maker, in fact received by Maker, shall be sufficient notice or demand.
9. Certain Waivers. As to this Note, Maker waives, to the fullest
extent that Maker is permitted to waive under applicable law, all applicable
exemption rights, whether under any state constitution, homestead laws or
otherwise, and also waives valuation and appraisement, presentment, notice of
dishonor, and protest, notice of demand and nonpayment of this Note, and notice
of acceleration and expressly agrees that the maturity of this Note, or any
payment under this Note, may be extended from time to time without in any way
affecting the liability of Maker.
10. Preservation of Payee Rights; Amendments; Severability. No
failure on the part of Payee to exercise any right or remedy hereunder, whether
before or after the happening of an Event of Default shall constitute a waiver
thereof, and no waiver of any past Event of Default shall constitute waiver of
any future default or of any other Event of Default. No failure to accelerate
the indebtedness evidenced hereby by reason of any Event of Default hereunder,
or acceptance of a past due payment, or indulgence granted from time to time,
shall be construed to be a waiver of the right to insist upon prompt payment
thereafter, or shall be deemed to be a novation of this Note or as a
reinstatement of the indebtedness evidenced hereby or as a waiver of such right
or acceleration or any other right, or be construed so as to preclude the
exercise of any right that Payee may have, whether by the laws of the State of
Maryland, by agreement, or otherwise; Maker hereby expressly waives the benefit
of any statute or rule of law or equity that would produce a result contrary to
or in conflict with the foregoing. Any waivers under this Note, the Pledge
Agreement or any other obligations secured thereby, must be made in writing and
signed by a duly authorized officer of the Payee and shall be limited to the
express terms of such waiver. This Note may not be amended orally, but only by
an agreement in writing signed by the party against whom such agreement is
sought to be enforced. In case any provision or any part of any provision
contained in this Note shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision or remaining part of the affected provision
of this Note, but this Note shall be construed as if such invalid, illegal, or
unenforceable provision or part thereof had never been contained herein but only
to the extent such provision or part thereof is invalid, illegal, or
unenforceable.
11. Maryland Law. This Note shall be governed by the laws of the
State of Maryland (excluding Maryland conflicts of laws rules).
12. Jurisdiction; Venue. Maker hereby irrevocably consents to the
non-exclusive personal jurisdiction of the courts of the State of Maryland and,
if a basis for federal jurisdiction exists, the non-exclusive jurisdiction of
the United States District Court for the District of Maryland. Maker agrees that
venue shall be proper in any circuit court of the State of Maryland selected by
Payee or, if a basis for federal jurisdiction exists, in any Division of the
United States District Court for the District of Maryland. Maker waives any
right to object to the maintenance of any suit or claim in any of the state or
federal courts of the State of Maryland on the basis of
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improper venue or of inconvenience of forum. Any suit or claim brought by Maker
against Payee that is based, in whole or in part, directly or indirectly, on
this Note or any matters relating to this Note, shall be brought in a court only
in the State of Maryland. Maker shall not file any counterclaim against Payee in
any suit or claim brought by Payee against Maker in a jurisdiction outside of
the State of Maryland unless under the rules of the court in which Payee brought
such suit or claim the counterclaim is mandatory, and not permissive, and would
be considered waived unless filed as a counterclaim in the claim or suit
instituted by Payee against Maker. Maker agrees that any forum outside the State
of Maryland is an inconvenient forum and that a suit brought by Maker against
Payee in any court outside the State of Maryland should be dismissed or
transferred to a court located in the State of Maryland.
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IN WITNESS WHEREOF, and intending to be legally bound hereby Maker
executes this Note under seal as of the date first written above.
WITNESS:
(SEAL)
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Name:
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State of ____________, County of ______________, to wit:
On this the _______ day of _____________, 2001, before me, the
undersigned officer, personally appeared ________________________________, known
to me (or satisfactorily proven) to be the person whose name is subscribed to
the within instrument, and acknowledged that he executed the same for the
purposes therein contained.
In witness whereof I hereunto set my hand and official seal.
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Notary Public
My commission expires:
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