LOAN AGREEMENT
This Loan Agreement dated as of December 22, 1998 (the "Agreement") by and
between Marcam Solutions, Inc., a Delaware corporation (the "Company"), and
Xxxxxxxx X. Xxxxx (the "Executive"):
WITNESSETH:
WHEREAS, the Company and the Executive have entered into an Employment
Agreement dated as of December 22, 1998 (the "Employment Agreement"); and
WHEREAS, the Executive desires to borrow from the Company, and the Company
is willing to lend to the Executive, up to $700,000 on the terms and subject to
the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of these premises and of the covenants and
agreements set forth in this Agreement, the parties hereto hereby agree as
follows:
1. Certain Definitions. Unless otherwise defined in this Agreement,
capitalized terms used in this Agreement that are defined in the Employment
Agreement shall have the meanings assigned to them in the Employment Agreement,
and the rules of construction and documentary convention set forth in the
Employment Agreement shall apply to this Agreement.
2. Loan. In addition to any other amounts the Company has been or is
subsequently authorized to lend to the Executive, the Company shall lend to the
Executive up to an aggregate principal amount of $700,000 (the "Loan") from time
to time as requested by the Executive. The Loan shall be represented by a
Promissory Note in the form set forth as Exhibit A (the "Note"). Prior to
receiving the first advance under the Loan, the Executive shall duly execute and
deliver the Note to the Company.
3. Maturity. The Loan shall mature on the earlier of (i) October 27, 2001,
(ii) the date 120 days after the expiration or termination of the Executive's
employment with the Company under the Employment Agreement, or (iii) if the
Executive accepts employment with, or becomes a consultant or advisor to, a
person that the Board of Directors of the Company determines in its sole and
absolute discretion is a competitor of the Company or otherwise competes with or
assists any person in competing with the Company (regardless of whether such
action violates any agreement the Executive has with the Company) (a
"Competitive Activity"), prior to the commencement of the Executive's
Competitive Activity.
4. Mandatory Prepayment. (a) The Company may require repayment of the Loan
(including any interest and other amounts owing thereunder), and may terminate
this Agreement, at any time when the Company's cash and cash equivalents are
less than $10,000,000. The Company may exercise this right by delivering written
notice to the Executive demanding
Loan Agreement--Page 2
repayment of the Loan (including any interest and other amounts owing
thereunder), terminating this Agreement, or both. If the Company demands
repayment of the Loan (including any interest and other amounts owing
thereunder), terminates this Agreement, or both, the Executive shall repay the
Loan (including any interest and other amounts owing thereunder) within 30 days
of such action by the Company.
(b) If the Executive sells any shares of the Company's common stock, par
value $.01 per share (the "Common Stock"), now or hereafter beneficially owned
by him, the Executive shall use the proceeds received by him from such sale,
less any federal or state taxes and brokerage commissions or underwriting
discounts the Executive is required to pay as a result of such sale, to
permanently repay the amounts outstanding under the Loan. At the time of such
repayment, the Executive shall provide the Company with a statement in
reasonable detail setting forth the terms of such sale, the gross proceeds form
such sale, and the federal and state taxes and brokerage commissions or
underwriting discounts the Executive is required to pay as a result of such
sale. All payments received by the Company hereunder will be applied first to
costs of collection, if any, then to interest and the balance to principal. The
principal amount the Executive is entitled to borrow under this Agreement shall
be permanently reduced by the amount of any principal repaid pursuant to this
Section 4(b).
5. Right of Offset. The Company shall have the right to offset any amounts
owing by the Company to the Executive pursuant to the Employment Agreement
against any amounts owing by Executive to the Company, including those owing
pursuant to this Agreement and the Note. To the extent that the Executive owes
money to the Company pursuant to this Agreement or the Note and such payment is
not then due, the Company may exercise its offset rights by paying any amounts
owing by the Company to the Executive at the time to a responsible escrow agent
to be held in escrow until the Executive's obligations under this Agreement and
the Note are performed or satisfied in full.
6. Miscellaneous. (a) This Agreement may not be changed, amended,
terminated or superseded orally, but only by an agreement in writing, nor may
any of the provisions hereof be waived orally, but only by an instrument in
writing, in any such case signed by the party against whom enforcement of any
change, amendment, termination, waiver, modification, extension or discharge is
sought.
(b) Except as otherwise provided herein, this Agreement shall be
governed by and construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts, without giving effect to the principles of
conflict of laws thereof.
(d) This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
Loan Agreement--Page 3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
MARCAM SOLUTIONS, INC.
By: /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
Director
/s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx