Unit Purchase Agreement - Exult Inc. and Bank of America Corp.
UNIT PURCHASE AGREEMENT
This Unit Purchase Agreement (this "AGREEMENT") is made and entered into
as of October 12, 2000 (the "EFFECTIVE DATE") by and between Exult, Inc., a
Delaware corporation (the "COMPANY"), and Bank of America Corporation, a
Delaware corporation (the "PURCHASER").
This Agreement contemplates a transaction in which the Purchaser will
purchase from the Company certain securities as set forth herein.
In consideration of the premises and the mutual promises set forth herein,
and for other good and valuable consideration, and on the basis of, and in
reliance upon, the representations, warranties and covenants contained herein,
the Company and the Purchaser hereby agree as follows:
1. SALE AND PURCHASE OF THE SECURITIES.
1.1 SALE AND PURCHASE. Subject to the express terms and conditions set
forth in this Agreement, the Company hereby sells and issues to the Purchaser,
and the Purchaser hereby purchases from the Company, Five Million (5,000,000)
Units (the "UNITS"), each consisting of one share of the Company's common stock,
par value $.0001 per share (a "SHARE"), and one warrant to purchase one Share (a
"WARRANT"), for aggregate consideration (collectively, the "PURCHASE PRICE")
consisting of the execution and delivery by Purchaser of the Memorandum of
Understanding of even date herewith (the "MOU") regarding a transaction pursuant
to which the Company would provide human resources business processing
outsourcing services to the Purchaser, and payment to the Company pursuant to
the promissory note in the form attached hereto as Schedule 1 being executed and
delivered by the Purchaser to the Company concurrently herewith (the "NOTE").
The exercise price of each Warrant shall be $11.00 per share.
1.2 DELIVERIES. In exchange for the Note, the Company is issuing the Units
in the Purchaser's name on the Company's books and records, and valid stock and
warrant certificates representing the Units (the "CERTIFICATES") shall be held
by the Company or its agent pending release upon (i) the Purchaser's delivery
and payment in full of the Purchase Price due under the Note and (ii) successful
completion of the Purchaser's regulatory due diligence process with respect to
the treatment of the Securities (as defined below) as a permitted investment
under applicable laws, rules and regulations (collectively, the "RELEASE
REQUIREMENTS"). Upon Purchaser's satisfaction of the Release Requirements, the
Company agrees to deliver the original Certificates to Purchaser at the address
set forth on the signature page hereof.
2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser represents and
warrants to the Company and its officers, directors and agents as follows:
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2.1 SECURITIES MATTERS.
(a) The Purchaser understands that (i) neither the Units (including
the Shares and the Warrants that comprise the Units and the Shares issuable upon
exercise of the Warrants, referred to herein as the "SECURITIES"), nor the offer
and sale thereof are registered or qualified under the Securities Act of 1933,
as amended (the "SECURITIES ACT") or the state securities or "Blue Sky" laws of
any state of other jurisdiction, on the ground that the sale provided for in
this Agreement and the issuance of securities hereunder is exempt from
registration and qualification under Sections 4(2) and 18 of the Securities Act,
and (ii) the Company's reliance on such exemptions is predicated on the
Purchaser's representations set forth herein.
(b) The Purchaser acknowledges that an investment in the Company
involves an extremely high degree of risk, lack of liquidity and substantial
restrictions on transferability and that the Purchaser may lose the Purchaser's
entire investment in the Securities.
(c) The Purchaser acknowledges that the Company has made available to
the Purchaser or the Purchaser's representatives or advisors the opportunity to
obtain information to evaluate the merits and risks of the purchase of the
Securities, and the Purchaser has received all information requested from the
Company. The Purchaser also acknowledges that it has had an opportunity to ask
questions and receive answers from the Company regarding the terms and
conditions of the offering of the Securities and the business, financial
condition, results of operations and prospects of the Company and to obtain such
additional information as the Purchaser has deemed appropriate for purposes of
investing in the Securities pursuant to this Agreement.
(d) The Securities to be acquired by the Purchaser hereunder will be
acquired for the Purchaser's own account, for investment purposes, not as a
nominee or agent, and not with a view to or for sale in connection with any
distribution of the Securities in violation of applicable securities laws.
(e) The Purchaser understands that no federal or state agency has
passed upon the Securities or made any finding or determination as to the
fairness of the investment in such securities.
(f) The Purchaser is an institutional investor with significant
experience and expertise in evaluating and investing in companies similar to the
Company, has the requisite knowledge, sophistication and experience in financial
and business matters that it is capable of evaluating the relative merits and
risks of the proposed investment in the Company, and is able to bear the
economic risk of an investment in the Securities pursuant to this Agreement and
can afford to sustain a total loss on such investment.
(g) The Purchaser is an "accredited investor" as defined in Rule
501(a) of Regulation D under the Securities Act.
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2.2 ENFORCEABILITY OF TRANSACTION DOCUMENTS. This Agreement, the Warrant
and the Note (collectively, the "Transaction Documents") have been (or upon
execution and delivery by the Purchaser will have been) duly executed and
delivered by the Purchaser, have been effectively authorized by all necessary
action of the Purchaser, corporate or otherwise, and (assuming due
authorization, execution and delivery by the other parties thereto) constitute
(or upon execution by the Purchaser will constitute) legal, valid and binding
obligations of the Purchaser, enforceable in accordance with its terms, except
(i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement of creditors' rights
generally, and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
2.3 NO CONFLICT. The execution and delivery of this Agreement and the
Transaction Documents do not, and, the consummation of the transactions
contemplated hereby and thereby will not, conflict with, or result in any
violation or breach of, or default (with or without notice or lapse of time, or
both) under, or give rise to a conflict under (i) any provision of the
Certificate of Incorporation and Bylaws of the Purchaser, as currently in
effect, (ii) any mortgage, indenture, lease, contract or other agreement or
instrument, permit, concession, franchise or license to which the Purchaser or
any of its respective properties or assets are subject or (iii) any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to the
Purchaser, any of its subsidiaries or their respective properties or assets,
except in each case where such conflict will not have a material adverse effect
on the business, properties, financial condition or results of operation of the
Purchaser and its subsidiaries, taken as a whole (a "PURCHASER MATERIAL ADVERSE
EFFECT").
2.4 CONSENTS. No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any governmental entity, or any third
party is required by or with respect to the Purchaser in connection with the
execution and delivery of this Agreement and the Transaction Documents or the
consummation of the transactions contemplated hereby and thereby, except for (i)
such consents, waivers, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable securities laws,
the Bank Holding Company Actand the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended (the "HSR ACT"), and (ii) such consents, waivers, approvals,
orders, authorizations, registrations, declarations and filings which, if not
obtained or made, would not have a Purchaser Material Adverse Effect.
2.5 BROKERS. No broker, finder, investment banker, or other person is
entitled to any broker's, finder's or other fee or commission in connection with
the transactions contemplated by this Agreement based upon arrangements made by
or on behalf of the Purchaser.
2.6 TAX MATTERS. The Purchaser has received tax advice from the
Purchaser's own advisors and has not received, and is not relying upon, any tax
representations or advice from the Company or any representative of the Company.
The Purchaser will be solely liable for all tax effects to the Purchaser of the
transactions contemplated by this Agreement.
2.7 ACCURACY OF INFORMATION. No representation or warranty made by the
Purchaser contained in this Agreement or in any other Transaction Document
contains or will contain an untrue statement of a material fact or omits or will
omit to state a material fact required to be
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stated herein or therein or necessary to make the statements and facts contained
herein or therein not materially false or misleading.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to the Purchaser that:
3.1 ORGANIZATION AND CORPORATE AUTHORITY. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to carry
on its business as now conducted, to enter into this Agreement and to consummate
the transactions contemplated hereby. This Agreement and the Warrant have been
duly executed and delivered by the Company, have been effectively authorized by
all necessary action of the Company, corporate or otherwise, and (assuming due
authorization, execution and delivery by the other parties thereto) constitute
legal, valid and binding obligations of the Company, enforceable in accordance
with its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
3.2 NO CONFLICT. The execution and delivery of this Agreement and the
Transaction Documents do not, and, the consummation of the transactions
contemplated hereby and thereby will not, conflict with, or result in any
violation or breach of, or default (with or without notice or lapse of time, or
both) under, or give rise to a conflict under (i) any provision of the
Certificate of Incorporation and Bylaws of the Company, as currently in effect,
(ii) any mortgage, indenture, lease, contract or other agreement or instrument,
permit, concession, franchise or license to which the Company or any of its
respective properties or assets are subject or (iii) any judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to the Company,
any of its subsidiaries or their respective properties or assets, except in each
case where such conflict will not have a material adverse effect on the
business, properties, financial condition or results of operation of the Company
and its subsidiaries, taken as a whole (a "COMPANY MATERIAL ADVERSE EFFECT").
3.3 CONSENTS. No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any governmental entity, or any third
party is required by or with respect to the Company in connection with the
execution and delivery of this Agreement and the Transaction Documents or the
consummation of the transactions contemplated hereby and thereby, except for (i)
such consents, waivers, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable securities laws and
the HSR Act, (ii) such consents, waivers, approvals, orders, authorizations,
registrations, declarations and filings which, if not obtained or made, would
not have a Company Material Adverse Effect, and (iii) the filing of an
application with The Nasdaq Stock Market to include the Shares and the Warrant
Shares (as defined below) for trading on The Nasdaq National Market.
3.4 VALID ISSUANCE OF COMMON STOCK. The Securities when issued, sold, and
delivered in accordance with the terms of this Agreement for the consideration
expressed herein will be duly and validly issued, fully paid, and nonassessable.
In addition, the Shares issued upon exercise of the Warrants (the "Warrant
Shares"), when issued against payment of the exercise price therefor, will be
duly and validly issued, fully paid, and nonassessable. Based in
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part upon the representations of Purchaser in this Agreement, the Securities and
Warrant Shares when issued, sold, and delivered in accordance with the terms of
this Agreement for the consideration expressed herein will be issued in
compliance with all applicable federal and state securities laws, as currently
in effect.
3.5 BROKERS. No broker, finder, investment banker, or other person is
entitled to any broker's, finder's or other fee or commission in connection with
the transactions contemplated by this Agreement based upon arrangements made by
or on behalf of the Company.
3.6 TAX MATTERS. The Company will be solely liable for all tax effects to
the Company of the transactions contemplated by this Agreement.
3.7 ACCURACY OF INFORMATION. No representation or warranty made by the
Company contained in this Agreement or in any other Transaction Document
delivered by the Company contains or will contain any untrue statement of a
material fact or omits or will omit to state any material fact necessary in
order to make the statements and facts contained herein or therein not
materially false or misleading.
3.8 SEC FILINGS. The Company has made all filings (the "SEC Filings") with
the Securities and Exchange Commission ("SEC") required under the Securities
Exchange Act of 1934 (the "Exchange Act"). As of their respective dates, the SEC
Filings complied as to form in all material respects with the requirements of
the Exchange Act, and the rules and regulations of the SEC promulgated
thereunder applicable to such SEC Filings, and the SEC Filings did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
financial statements set forth in the SEC Filings comply as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC promulgated under the Exchange Act and have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except as may be
indicated in the notes to such financial statements) and fairly present in all
material respects the consolidated financial position of the Company and its
subsidiaries at the respective dates thereof and the consolidated results of
operations and cash flows for the respective periods then ended (subject, in the
case of unaudited interim financial statements, to exceptions permitted by Form
10-Q under the Exchange Act).
4. CERTAIN UNDERSTANDINGS OF THE PARTIES.
4.1 SECURITIES RESTRICTIONS.
(a) The Purchaser shall not offer, sell or transfer the Units (or
interests therein), including the Shares and the Warrants that comprise the
Units, for one year from the date of this Agreement. In addition, the Purchaser
shall not offer, sell or transfer any Warrant Shares for one year from the date
such Warrant Shares are issued upon exercise of the Warrants. Notwithstanding
the restrictions imposed by this Section 4.1(a), the Purchaser or any affiliate
of the Purchaser may transfer the Securities, including the Warrant Shares, to
an affiliate of the Purchaser that delivers to the Company in writing an
agreement to be bound by the terms and conditions of this Agreement. For
purposes of this Agreement an "affiliate" means any person or entity
controlling, controlled by, or under common control with the Purchaser.
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(b) After the periods described in Section 4.1(a), during which the
Securities are not transferable, the Purchaser shall not offer, sell or transfer
any of the Securities without appropriate registration and qualification under
the Securities Act and the state securities laws of any applicable state of
jurisdiction, or an exemption from the registration requirements of the
Securities Act and such securities laws is available and the Purchaser has
provided to the Company (at the Purchaser's expense) an opinion of counsel to
the Purchaser in form and substance reasonably satisfactory to the Company that
such an exemption is available. It is agreed that the Company will not require
opinions of counsel for transactions made pursuant to Rule 144 except in
extraordinary circumstances. The Certificates evidencing the Shares, the
Warrants and the Shares issuable upon exercise of the Warrants will bear the
restrictive legend set forth in Section 4.1(c).
(c) The Certificates will bear a legend to the effect set forth below,
and appropriate stop transfer instructions against the Securities will be placed
with any transfer agent of the Company to ensure compliance with the
restrictions set forth herein.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE,
TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER SUCH ACT AND THE SECURITIES LAWS OF ANY APPLICABLE
STATE OR OTHER JURISDICTION, OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL TO THE HOLDER OF THE SECURITIES OR OTHER EVIDENCE,
SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS
NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF THE SECURITIES ACT
OF 1933, AS AMENDED.
In addition, the Certificates will bear any legend imposed or required by
applicable state securities laws.
4.2 EXERCISABILITY OF THE WARRANTS. The Warrants shall not become
exercisable unless and until the Note is paid in full pursuant to its terms.
4.3 VOTING AND DIVIDEND RIGHTS. From and after the date hereof, the
Purchaser shall have the right to vote all shares of common stock and to receive
all dividends, cash, options, warrants, rights, securities, instruments and
other property from time to time paid, payable or otherwise distributed in
respect of the Securities (the "Distributions"); provided, however, that any
such Distributions payable or otherwise distributed in respect of the Securities
prior to Purchaser's satisfaction of the Release Requirements shall be held by
the Company or its agent pending Purchaser's satisfaction of such Release
Requirements, following which the Company shall deliver any such Distributions
together with the original Certificates to Purchaser at the address set forth on
the signature page hereof.
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5. CONCURRENT DELIVERIES.
5.1 DELIVERIES BY THE COMPANY. Concurrent herewith, the Company shall
execute and deliver to the Purchaser the Warrant attached hereto as Schedule 2
and shall deliver to the Purchaser a photocopy of the Certificates representing
the Shares and the Warrants comprising the Units issued in the Purchaser's name
and shall hold such Certificates in pledge for the benefit of the Purchaser
until the Note is paid pursuant to its terms and the original Certificates are
delivered to Purchaser in accordance with Section 1.2 above.
5.2 DELIVERIES BY THE PURCHASER. Concurrent herewith, the Purchaser shall
execute the Warrant and execute and deliver to the Company the Note attached
hereto as Schedule 1.
6. MISCELLANEOUS.
6.1 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed given upon personal delivery
or three (3) days after being mailed by certified or registered mail, postage
prepaid, return receipt requested, or one (1) business day after being sent via
a nationally recognized overnight courier service if overnight courier service
is requested from such service or upon receipt of electronic or other
confirmation of transmission if sent via facsimile, to the parties, their
successors in interest or their assignees at the addresses and telephone numbers
set forth on the signature page hereof or at such other addresses or telephone
numbers as the parties may designate by written notice in accordance with this
Section 6.1.
6.2 ASSIGNABILITY AND PARTIES IN INTEREST. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties.
Nothing in this Agreement, express or implied, will confer upon any person or
entity not a party to this Agreement, or the legal representatives of such
person or entity, any rights, remedies, obligations, or liabilities of any
nature or kind whatsoever under or by reason of this Agreement, except as
expressly provided in this Agreement or the other Transaction Documents.
6.3 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
6.4 COMPLETE AGREEMENT. This Agreement, schedules hereto, and the other
Transaction Documents contain the entire agreement between the parties hereto
with respect to the subject matter contemplated herein and therein and supersede
all previous oral and written and all contemporaneous oral negotiations,
commitments, and understandings with respect thereto. The parties acknowledge
that their agreements hereunder were not procured through representations or
agreements not set forth herein or therein.
6.5 AMENDMENTS. This Agreement and the other Transaction Documents may be
amended only by written instrument duly executed and delivered by the parties
hereto or thereto, as the case may be.
6.6 CONSTRUCTION. The headings contained in this Agreement and the other
Transaction Documents are for reference purposes only and shall not affect in
any way the meaning or interpretation hereof or thereof. References herein or
therein to Sections, Schedules
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and Exhibits refer to the referenced Sections, Schedules or Exhibits hereof or
thereof as the case may be, unless otherwise specified. This Agreement and the
other Transaction Documents shall be deemed the joint work product of the
parties hereto or thereto without regard to the identity of the draftsperson,
and any rule of construction that a document shall be interpreted or construed
against the drafting party shall not be applicable.
6.7 EXPENSES OF TRANSACTIONS. All fees, costs and expenses incurred by the
Company or the Purchaser in connection with the transactions contemplated by
this Agreement and the other Transaction Documents shall be borne by the party
incurring the same.
6.8 GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard
to its conflicts-of-law principles.
6.9 ATTORNEYS' FEES AND COSTS. In the event of any judicial or legal
proceeding arising as a result of any dispute related to the subject matter
hereof, the prevailing party shall be entitled to recover from the
non-prevailing party the reasonable attorneys' fees and costs of the prevailing
party incurred in connection therewith.
6.10 WAIVER OF JURY TRIAL. Each of the Purchaser and the Company
irrevocably waives to the extent permitted by law, all rights to trial by jury
in any action, proceeding or counterclaim arising out of or relating to this
Agreement or the other Transaction Documents.
6.11 DAMAGES. In no event will any party to this Agreement or the other
Transaction Documents be liable to any other party for special, indirect,
punitive or incidental damages, lost profits, lost savings or any other
consequential damages, even if such party has been advised of the possibility of
such damages resulting from the breach by it of any of its obligations under
this Agreement or the other Transaction Documents.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
EXULT, INC. BANK OF AMERICA CORPORATION
By: By:
-------------------------------- -------------------------------
Name: Name:
------------------------------ -----------------------------
Title: Title:
----------------------------- ----------------------------
Address: Address:
4 Park Plaza, Suite 1000 Bank of America Strategic Alliances &
Irvine, California 92614 Investments
C/o Bank of America Corporation
200 South College Street, NC1-014-10-02
Telephone No.: (949) 250-8002 Charlotte, North Carolina 28255-0001
Facsimile No.: (949) 553-1541
Telephone No.: (704) 387-4159
Facsimile No.: (704) 386-2358
Attn: Hoa T. Nguyen
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