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EXHIBIT 10.09
FORM OF SECURED FULL RECOURSE PROMISSORY NOTE
San Jose, California Date: 31 August, 2000
Reference is made to that certain Limited Liability Company Agreement (the "LLC
AGREEMENT") dated ______, 2000 for Glouple Ventures 2000 - II, a Delaware
limited liability company (the "COMPANY") among the undersigned (the
"BORROWER"), Flextronics International NV, a Netherlands Antilles company (the
"LENDER") and the other members of the Company. This Secured Full Recourse
Promissory Note (the "NOTE") is being tendered by Borrower to the Lender in
connection with certain loans that the Lender may in the future make to the
Borrower to finance capital contributions by the Borrower to the Company
pursuant to the LLC Agreement.
1. OBLIGATION. The Lender is making a loan to the Borrower to enable the
Borrower to acquire a membership interest in the Company (the "MEMBERSHIP
Interest"), and may from time to time make additional loans to the Borrower to
enable the Borrower to fund additional capital contributions to the Company
required to be made by Borrower pursuant to the LLC Agreement. All such loans
are herein collectively referred to as the "LOANS." The proceeds of such Loans
may be disbursed by Lender directly to the Company on the Borrower's behalf.
Borrower hereby promises to pay to the order of the Lender on or before August
15, 2010 at the Lender's place of business located at Landhuis Joonchi, Kaya
Xxxxxxx X. Xxxxxxx z/n, X.X. Xxx 000, Xxxxxxx, Xxxxxxxxxxx Antilles, or at such
other place as the Lender may direct, the aggregate outstanding principal
balance of all Loans, together with interest compounded annually on the unpaid
principal at the rate of seven percent (7%) (which rate shall be no less than
equal to the minimum rate applicable on the date the Loan in question is made as
determined in accordance with Section ss.1274(D) of the Internal Revenue Code of
1986, as amended from time to time (the "CODE"); provided, however, that the
rate at which interest will accrue on unpaid principal under this Note will not
exceed the highest rate permitted by applicable law. All payments hereunder
shall be made in lawful tender of the United States. Borrower hereby authorizes
Lender to record on the schedule annexed to this Note the date and amount of
each Loan, the applicable interest rate and the date and amount of each payment
or prepayment of principal made by Borrower and agrees that all such notations
shall constitute prima facie evidence of the matters noted; provided, however,
that the failure of Lender to make any such notation shall not affect Borrower's
obligations hereunder.
2. SECURITY. Performance of Borrower's obligations under this Note is
secured by a security interest in and to all right, title and interest of
Borrower in the outstanding limited liability company interest in the Company
now or hereafter owned by Borrower and certain rights related thereto as more
fully described in a Pledge Agreement, dated as of ____, 2000, between Borrower
and Lender (the "PLEDGE AGREEMENT").
3. EVENTS OF DEFAULT. Borrower will be deemed to be in default under this
Note upon the occurrence of any of the following events (each an "EVENT OF
DEFAULT"): (i) upon Borrower's failure to make any payment when due under this
Note which failure shall continue for a period of thirty (30) days after such
due date; (ii) Borrower is no longer employed by the Lender or by a subsidiary
of Lender for any reason; (iii) the failure of any representation or warranty in
the Pledge Agreement to have been true, the failure of Borrower to perform any
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obligation under the Pledge Agreement, or upon any other material breach by the
Borrower of the Pledge Agreement; (iv) any voluntary or involuntary transfer of
any of the membership interests in the company which is not in compliance with
the LLC Agreement or; (v) upon the filing regarding the Borrower of any
voluntary or involuntary petition for relief under the United States Bankruptcy
Code or any similar law of any jurisdiction outside of the United States, or the
initiation of any proceeding under applicable law for the general relief of
debtors; or (vi) upon the execution by Borrower of an assignment for the benefit
of creditors or the appointment of a receiver, custodian, trustee or similar
party to take possession of Borrower's assets or property.
4. ACCELERATION; REMEDIES ON DEFAULT. Upon the occurrence of any Event of
Default, at the option of the Lender, all principal and other amounts owed under
this Note shall become immediately due and payable without notice or demand on
the part of the Lender, and the Lender will have, in addition to its rights and
remedies under this Note and the Pledge Agreement, full recourse against any
real, personal, tangible or intangible assets of Borrower, and may pursue any
legal or equitable remedies that are available to it.
5. PREPAYMENT. Prepayment of principal, interest and/or other amounts owed
under this Note may be made at any time without penalty. In addition, if at any
time the Borrower otherwise would be entitled to receive any cash distributions
from the Company, the Borrower will apply the entire amount of such cash
distribution as a prepayment of principal (together with then-accrued interest
thereon) and/or other amounts owed under this Note, and Borrower hereby
authorizes and directs the Company to pay over to the Lender, on behalf of the
Borrower, any cash that otherwise would be distributed to the Borrower, to be
applied to such prepayment, to the extent that the amount of such distribution
is less than or equal to the outstanding principal and accrued interest on, and
other amounts owed under, this Note. Unless otherwise agreed in writing by the
Lender, each payment will be applied to the extent of available funds from such
payment in the following order: (i) first to the accrued and unpaid costs and
expenses under the Note or the Pledge Agreement, (ii) then to accrued but unpaid
interest on the principal to be prepaid, and (iii) lastly to the outstanding
principal.
6. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER. The validity of this Note,
the construction, interpretation, and enforcement hereof, and the rights of the
parties hereto with respect to all matters arising hereunder or related hereto
shall be determined under, governed by, and construed in accordance with the
laws of the State of California. The parties agree that all actions or
proceedings arising in connection with this agreement and the other loan
documents shall be tried and litigated only in the state and federal courts
located in the County of Santa Xxxxx, State of California or, at the sole option
of Lender, in any other court in which Lender shall initiate legal or equitable
proceedings and which has subject matter jurisdiction over the matter in
controversy. Each of Lender and Borrower waives, to the extent permitted under
applicable law, any right each may have to assert the doctrine of forum non
conveniens or to object to venue to the extent any proceeding is brought in
accordance with this Section 6. Lender and Borrower hereby waive their
respective rights to a jury trial on any claim or cause of action based upon or
arising out of this document or any of the transactions contemplated hereby,
including contract claims, tort claims, breach of duty claims, and all other
common law or statutory claims. Each of Lender and Borrower represents that it
has reviewed this waiver and each knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. In the event of
litigation, a copy of this agreement may be filed as a written consent to a
trial by the court. Borrower hereby waives presentment, notice of non-payment,
notice of
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dishonor, protest, demand and diligence.
7. ATTORNEYS' FEES. If suit is brought for collection of this Note,
Borrower agrees to pay all reasonable expenses, including attorneys' fees,
incurred by the holder in connection therewith whether or not such suit is
prosecuted to judgment.
IN WITNESS WHEREOF, Borrower has executed this Note as of the date and
year first above written.
BORROWER:
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Borrower's Signature
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Borrower's Name [type or print]
LENDER:
FLEXTRONICS INTERNATIONAL NV
By:
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Name:
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Title:
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