Loan Agreement - Exult Inc. and Kevin M. Campbell
LOAN AGREEMENT
This Loan Agreement (this "AGREEMENT") is made as of May 30, 2000 (the
"EFFECTIVE DATE"), by and between Exult, Inc., a Delaware Corporation (the
"COMPANY") and Kevin M. Campbell ("CAMPBELL").
A. The Company and Campbell have entered into that certain Executive
Employment Agreement (as amended from time to time, the "EMPLOYMENT AGREEMENT")
of even date herewith, pursuant to which Campbell is being employed by the
Company.
B. In connection with Campbell's employment with the Company, the Company
desires to provide a loan to Campbell, and Campbell desires to accept such loan,
on the terms set forth in this Agreement.
Therefore, in consideration of the foregoing promises and the covenants
contained in this Agreement, and for other good and valuable consideration, the
receipt and adequacy of which are acknowledged by the parties to this Agreement,
the Company and Campbell agree as follows:
1. MAXIMUM POTENTIAL BORROWING. Pursuant to the terms of this Agreement,
the Company will make loan funds available to Campbell in the amount of One
Million Dollars ($1,000,000) (the "BASE COMPONENT"), plus an additional amount
equal to the brokerage commission, not in excess of 6% of the sales price,
actually paid by Campbell in connection with the sale of his residence located
in Atlanta, Georgia, less any portion thereof otherwise reimbursed to Campbell
(the "BROKERAGE COMPONENT" and collectively with the Base Component, the
"MAXIMUM POTENTIAL BORROWING" or "MPB").
2. AVAILABLE FUNDS; DRAWS. The Base Component will become available for
borrowing by Campbell in the amounts and on the dates as set forth in Schedule A
attached hereto and incorporated herein by reference. The Brokerage Component
will become available for borrowing by Campbell upon the closing of the sale of
Campbell's residence located in Atlanta, Georgia, and payment by Campbell of the
brokerage commission in connection therewith, provided that Campbell has
provided reasonably adequate documentation verifying such amount. At such time
that any portion of the MPB is made available by the Company pursuant to this
Section 2, such funds shall be "AVAILABLE FUNDS" for purposes hereof. Campbell
may borrow any or all of the Available Funds from time to time in one or more
installments (each such borrowing a "DRAW"), provided that Campbell complies
with the terms and conditions of this Agreement.
3. LOAN AMOUNT; INTEREST.
(a) The "LOAN" under this Agreement will consist of all Draws together with
interest accrued thereon as provided by this Agreement. The Loan shall be
reduced from time to time by any amounts forgiven pursuant to Section 5 of this
Agreement or any amounts repaid to the Company by or on behalf of Campbell, and
increased from time to
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time by any additional Draws made by Campbell. Each Draw shall bear interest at
the applicable federal rate ("AFR") in effect on the date such Draw is made, per
annum (computed on the basis of a 360-day year of twelve 30-day months).
(b) The Company shall maintain reasonably adequate records reflecting the
balance of the Loan and all adjustments thereto as a result of additional Draws
or forgiveness by the Company pursuant to this Agreement. Such records shall be
dispositive of the amount of the Loan, absent manifest error. Campbell shall
have the right to inspect such records upon reasonable notice to the Company.
4. LIMITATIONS AND CONDITIONS TO DRAWS. Campbell may not draw any funds
that are not Available Funds, and the aggregate amount of all Draws at any time
may not exceed the total amount of the MPB that has become Available Funds as of
that time. At any time that Campbell desires to draw Available Funds, Campbell
must (i) be an employee in good standing with the Company at such time and be in
compliance with the Company's written policies put in place by the Company from
time to time (ii) provide at least five days' written notice as to the amount of
Available Funds to be drawn. Campbell shall sign a receipt in a form reasonably
satisfactory to the Company evidencing his receipt of each Draw.
5. FORGIVENESS OF LOAN. Subject to the limitations in connection with the
termination of Campbell's employment with the Company set forth in Section 6
below, Campbell' obligation to repay the Loan will be forgiven in four
increments as of January 1, 2002, January 1, 2003, January 1, 2004, and January
1, 2005 (each a "FORGIVENESS DATE"). The amount of the Loan to be forgiven on
each Forgiveness Date (each a "FORGIVENESS INCREMENT") will be the sum of (i)
$250,000 (representing one-fourth of the Base Component); plus (ii) if the
Brokerage Component has then become available, the amount of the Brokerage
Component divided by the total number of remaining Forgiveness Dates (including
the then-current Forgiveness Date); plus (iii) any interest accrued on the
amounts listed in items (i) and (ii). On any Forgiveness Date, the Company shall
forgive the portions of the Loan outstanding for the longest period of time
first. If the Forgiveness Increment (less the interest component thereof) on any
Forgiveness Date exceeds the aggregate of all Draws not yet repaid or forgiven
immediately before forgiveness on that Forgiveness Date, then the next Draw or
Draws up to an aggregate amount of such excess will be forgiven immediately upon
draw.
6. OBLIGATIONS IN CONNECTION WITH TERMINATION OF EMPLOYMENT.
(a) If Campbell resigns his employment, or if his employment is terminated
by the Company for cause, or upon his disability (as such terms are defined in
the Employment Agreement), or upon his death, then (i) the Company will no
longer be obligated to forgive any part of the Loan not yet forgiven at such
time, (ii) Campbell may not make any further Draws and any rights Campbell has
to receive any Available Funds not yet advanced shall be extinguished and of no
further force and effect, and (iii) all amounts drawn and not previously
forgiven, and accrued unpaid interest thereon, will be due and payable upon
demand by the Company. Amounts previously forgiven will not become due.
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(b) If Campbell's employment is terminated by the Company without cause, as
such term is defined in the Employment Agreement, (i) all amounts drawn from
Available Funds not previously forgiven by the Company and accrued unpaid
interest thereon will be immediately forgiven by the Company and (ii) Campbell
may not make any further Draws and any rights Campbell has to receive any
Available Funds not yet advanced shall be extinguished and of no further force
and effect.
7. REPAYMENT. Campbell will have no obligation to repay the Loan except as
set forth in Section 6. Campbell may repay in full or in part at any time and
from time to time without premium or penalty, provided that all payments made
hereunder will first be applied to any accrued and unpaid interest outstanding
on the date of such payment.
8. RECOURSE. Until repaid or forgiven, the Loan shall be full recourse to
Campbell and his estate and Campbell shall be personally liable for all
principal and interest that may become payable pursuant to this Agreement. The
Company may (but will not be obligated to), without limiting other remedies,
reduce any repayment obligation Campbell may incur by retaining amounts
otherwise payable to Campbell or shares otherwise issuable to Campbell valued at
fair market value on the date so issuable.
9. TAXES. Campbell shall be responsible for, and shall pay in compliance
with applicable law and without any assistance from the Company, all taxes that
may become due and payable to any taxing authority as a result of or in
connection with this Agreement or any transaction hereunder, including without
limitation any forgiveness of the Loan. If the Company is required to withhold
any amounts or to make any tax payments in respect of consideration provided by
the Company, such amounts may be deducted from any salary, bonus, or other
amounts otherwise payable by the Company to Campbell. Campbell has sought his
own advice regarding this Agreement and its tax and other consequences, and
acknowledges that the Company has not provided any tax or other advice or
representations concerning this Agreement or the transactions hereunder.
10. ASSIGNMENT. Campbell may not transfer this Agreement or assign his
rights or obligations hereunder without the express written consent of the
Company. Subject to the foregoing, the rights and obligations of Campbell and
the Company under this Agreement shall be binding upon and benefit the
successors, assigns, heirs, administrators and transferees of the parties.
11. WAIVER. Diligence, presentment, protest, demand, dishonor, nonpayment,
and notice of every kind are waived by all makers, sureties, guarantors, and
endorsers of this Agreement, to the fullest extent permitted by applicable law.
To the fullest extent permitted by law, the defense of the statute of
limitations is waived by Campbell. Notwithstanding the foregoing, the waiver by
either party of a breach of any provision of this Agreement shall not operate as
or be construed as a waiver of any later breach of that provision.
12. REMEDIES. No delay or omission on the part of the Company or Campbell
in exercising any right or remedy under this Agreement or applicable law will
operate as
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a waiver of such right or remedy or of any other right or remedy. No single or
partial exercise of any power under this Agreement or applicable law will
preclude other or further exercise thereof or the exercise of any other power.
All rights and remedies provided pursuant to this Agreement or by law shall be
cumulative, and no such right or remedy shall be exclusive of any other. A party
may pursue any one or more rights or remedies hereunder or may seek damages or
specific performance in the event of another party's breach hereunder or may
pursue any other remedy by law or equity, whether or not stated in this
Agreement.
13. AMENDMENT. No provision of this Agreement may be amended, waived or
modified except by written agreement of Campbell and the Company, except that
Campbell and any sureties or guarantors of this Note consent to all extensions
without notice for any period or periods of time and to the acceptance of
partial payments before or after maturity, and to the acceptance, release, and
substitution of security, all without prejudice to the Company. The Company will
have the right to deal in any way, at any time, with Campbell, or with any
surety or guarantor hereof, without notice to any other party, and to grant any
such party any extensions of time for payment of any of the indebtedness
hereunder, or to grant any other indulgences or forbearance whatsoever, without
notice to any other party and without in any way affecting the liability of any
such party.
14. USURY. All agreements between Campbell and the Company are expressly
limited so that in no contingency or event whatsoever, whether by reason of
advancement of the proceeds hereof, acceleration of maturity of the unpaid
principal balance hereof, or otherwise, will the amount paid or agreed to be
paid to the Company for the use, forbearance or detention of money exceed the
highest lawful rate permissible under applicable usury laws. If, from any
circumstances whatsoever, fulfillment of any provision of this Agreement or any
other agreement or guaranty securing this Agreement, at the time performance of
such provision is due, involves transcending the limit of validity prescribed by
law which a court of competent jurisdiction may deem applicable hereto, then the
obligation to be fulfilled will be reduced to the limit of such validity.
Furthermore, if, from any circumstances whatsoever, the Company ever receives as
interest an amount which would exceed the highest lawful rate, the amount which
would be excessive interest will be applied to the reduction of the unpaid
principal balance due hereunder and not to the payment of interest. This
provision controls every other provision of all agreements between Campbell and
the Company.
15. OTHER OBLIGATIONS. Performance under this Agreement is not intended and
is not to be construed as an accord and satisfaction or other release or
discharge of any obligations or indebtedness of Campbell to the Company not
otherwise evidenced specifically.
16. NOTICES. Any notices, demands or other communications required or
desired to be given by any party shall be in writing and shall be validly given
to another party if served either personally or if deposited in the United
States mail, certified or registered, postage prepaid, return receipt requested.
If such notice, demand or other communication shall be served personally,
service shall be conclusively deemed made at
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the time of such personal service. If such notice, demand or other communication
is given by mail, such notice shall be conclusively deemed given forty-eight
(48) hours after the deposit thereof in the United States mail addressed to the
party to whom such notice, demand or other communication is to be given as
hereinafter set forth:
To the Company: Exult, Inc.
4 Park Plaza, Suite 1000
Irvine, California 92614
Attention: Chief Executive Officer
With a copy to: General Counsel
To Campbell: Kevin Campbell
At his address of record as maintained in the
Company's employment files
Any party may change its address for the purpose of receiving notices, demands
and other communications by providing written notice to the other party in the
manner described in this paragraph.
17. GOVERNING DOCUMENTS. This Agreement and the Employment Agreement
constitute the entire agreement and understanding of the Company and Campbell
with respect to the subject matter hereof and supersedes all prior and
contemporaneous written or verbal agreements and understandings between Campbell
and the Company relating to such subject matter. This Agreement may only be
amended by written instrument signed by Campbell and an authorized officer of
the Company. Any and all prior agreements, understandings or representations
relating to the transactions contemplated herein are terminated and cancelled in
their entirety and are of no further force or effect.
18. GOVERNING LAW; SEVERABILITY. The provisions of this Agreement will be
construed and interpreted under the laws of the State of California applicable
to agreements executed and to be wholly performed within the State of
California. If any provision of this Agreement as applied to any party or to any
circumstance is adjudged by a court of competent jurisdiction to be void or
unenforceable for any reason, the invalidity of that provision shall in no way
affect (to the maximum extent permissible by law) the application of such
provision under circumstances different from those adjudicated by the court, the
application of any other provision of this Agreement, or the enforceability or
invalidity of this Agreement as a whole. If any provision of this Agreement
becomes or is deemed invalid, illegal or unenforceable in any jurisdiction by
reason of the scope, extent or duration of its coverage, then such provision
shall be deemed amended to the extent necessary to conform to applicable law so
as to be valid and enforceable or, if such provision cannot be so amended
without materially altering the intention of the parties, then such provision
will be stricken and the remainder of this Agreement shall continue in full
force and effect.
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19. ARBITRATION. Any and all disputes that arise in connection with this
Agreement or the Loan shall be resolved through final and binding arbitration
governed pursuant to the terms of Section 18 of the Employment Agreement, which
are hereby incorporated herein by reference. CAMPBELL WAIVES THE RIGHT TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, AND ANY RIGHT CAMPBELL MAY HAVE TO ASSERT THE
DOCTRINE OF FORUM NON-CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
PROCEEDING IS BROUGHT HEREUNDER.
20. COUNTERPARTS. This Agreement may be executed in more than one
counterpart, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement on
the Effective Date.
EXULT, INC.
_______________________________ By: ______________________________________
KEVIN CAMPBELL Name: ____________________________________
Title: ___________________________________
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SCHEDULE A
LOAN SCHEDULE
BASE COMPONENT
The Company shall make the Base Component available to Campbell for draw in
the following amounts at the following times:
Effective Date of Loan Agreement $200,000
June 1, 2000 $68,000
July 1, 2000 $45,000
August 1, 2000 $56,000
September 1, 2000 $56,000
October 1, 2000 $45,000
November 1, 2000 $45,000
December 1, 2000 $45,000
January 1, 2001 $56,000
February 1, 2001 $35,000
March 1, 2001 $45,000
April 1, 2001 $68,000
May 1, 2001 $35,000
June 1, 2001 $35,000
July 1, 2001 $35,000
August 1, 2001 $35,000
September 1, 2001 $35,000
October 1, 2001 $35,000
November 1, 2001 $26,000
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