{"id":40064,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/loan-agreement-golden-bear-real-estate-llc-and-robert-m.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"loan-agreement-golden-bear-real-estate-llc-and-robert-m","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/loan-agreement-golden-bear-real-estate-llc-and-robert-m.html","title":{"rendered":"Loan Agreement &#8211; Golden Bear Real Estate LLC and Robert M. Calderoni"},"content":{"rendered":"<pre>\n                                 LOAN AGREEMENT\n\n\n           This Loan Agreement (\"Agreement\") is made as of February 1, 2001, by\nand between Golden Bear Real Estate, L.L.C., a Delaware limited liability\ncompany (the \"Lender\"), and Robert M. Calderoni (the \"Borrower\").\n\n                                    RECITALS\n                                    --------\n\n           Borrower is borrowing from Lender, and Lender is lending to Borrower,\nFour Million Dollars ($4,000,000) (the \"Principal Amount\").\n\n                                    AGREEMENT\n                                    ---------\n\n           In consideration of the mutual promises, covenants and agreements\nhereinafter set forth, and other good and valuable consideration, the receipt\nand sufficiency of which is hereby acknowledged, the parties hereby agree as\nfollows:\n\n           1.  Promissory Note. Subject to the terms and conditions contained\n               ---------------\nherein, Borrower had executed and delivered to Lender a Promissory Note dated as\nof February 1, 2001, a copy of which is attached hereto as Exhibit A and\n                                                           ---------\nincorporated herein by reference (the \"Note\").\n\n           2.  Promise to Pay.\n               --------------\n\n               (a)  As set forth in the Note, interest shall accrue from\nFebruary 1, 2001 at the rate of 5.07% per annum (the Applicable Federal Rate),\ncompounded annually. If payment of principal or accrued interest is not made in\nfull when due, all unpaid amounts (including principal and interest) shall bear\nadditional interest at the maximum rate legally payable to Lender until paid in\nfull.\n\n               (b)  Unless the loan repayment schedule is accelerated pursuant\nto Section 3 of this Agreement or the terms of the Note, Borrower promises to\npay to Lender, on November 21, 2004 (the \"Maturity Date\"), the unpaid and\npreviously unforgiven Principal Amount, together with any accrued but unpaid and\npreviously unforgiven interest under the Note. However, the unpaid and\npreviously unforgiven Principal Amount, together with any accrued but unpaid and\npreviously unforgiven interest under the Note, shall be forgiven by Lender:\n\n                    (i)   as provided in Section 2(c) below;\n\n                    (ii)  on the date of Involuntarily Termination (as defined\nin Section 7) of your employment with Ariba, Inc. (the \"Company\"); or\n\n                    (iii) on the closing date of a Change in Control (as defined\nbelow).\n\n                                        1\n\n\n\n               (c) Borrower's obligation to repay any remaining unpaid and\npreviously unforgiven Principal Amount together with any accrued but unpaid and\npreviously unforgiven interest under the Note shall be reduced as Borrower\nremains employed by Company, according to the following schedule:\n\n                   (i)   After Borrower completes one full year of such\nemployment starting on November 22, 2000 and ending on November 21, 2001, 25% of\nthe full Principal Amount and all accrued but unpaid and previously unforgiven\ninterest on the full Principal Amount through November 21, 2001 shall be\nforgiven by Lender on November 21, 2001;\n\n                   (ii)  After Borrower completes each additional full year of\nsuch employment starting on November 22 each year (beginning on November 22,\n2001 and ending on November 22, 2003) and ending on November 21 of the following\ncalendar year, 25% of the full Principal Amount and all accrued but unpaid and\npreviously unforgiven interest on the full unpaid Principal Amount through\nNovember 21 of such following year shall be forgiven by Lender on such November\n21; and\n\n                   (iii) Upon termination of employment other than for Cause\nafter Borrower completes a partial year of such employment starting on November\n22 each year (beginning on November 22, 2001 and ending on November 22, 2003)\nand ending before November 21 of the following calendar year, a Pro Rata Share\n(as defined below) and all accrued but unpaid and previously unforgiven interest\non the full unpaid Principal Amount through the date of termination of such\nemployment shall be forgiven upon the date of termination of employment. \"Pro\nRata Share\" shall equal the full Principal Amount multiplied by a fraction (i)\nthe numerator of which is the number of days between the date of termination of\nemployment and the immediately preceding November 22 divided by (ii) the\ndenominator of which is 1,440\n\n               (d) If any payment is due on Saturday, Sunday or a public holiday\nunder the laws of the State of California, such payment shall be made on the\nnext succeeding business day and such extension of time shall be included in\ncomputing interest in connection with such payment. For purposes of this\nAgreement, Borrower's employment with the Company shall be deemed to have\ncommenced on November 22, 2000.\n\n           3.  Acceleration. The then outstanding and previously unforgiven\n               ------------\nPrincipal Amount, together with all accrued but unpaid and previously unforgiven\ninterest under the Note, shall be immediately due and payable on the last day of\nthe third month following Borrower's Voluntary Resignation (as defined in\nSection 7) or Borrower's termination of employment for Cause (as defined in\nSection 7).\n\n           4.  Governing Law. This Agreement shall be construed and interpreted\n               -------------\nunder the laws of the State of California.\n\n           5.  Entire Agreement; Controlling Documents. This Agreement and the\n               ---------------------------------------\nNote constitute the entire contract between the parties hereto with regard to\nthe subject matter hereof. They supersede any other agreements, representations\nor understandings (whether oral or written or implied) which relate to the\nsubject matter hereof.\n\n                                        2\n\n\n\n     6. Successors and Assigns. Borrower and Lender agree that all of the terms\n        ----------------------\nof this Agreement shall be binding on their successors and assigns, and that the\nterm \"Borrower\" and the term \"Lender\" as used herein shall be deemed to include\nas to each party for all purposes, the designees, successors, assigns, heirs,\nexecutors and administrators of such party. Lender hereby confirms that the Note\nis not assignable, except to an affiliate or the family members of an affiliate.\n\n     7. Definitions.\n        -----------\n\n        (a)   \"Cause\" means:\n\n              (i)  Borrower's intentional misconduct that materially harms the\nCompany, but only if such misconduct results in Borrower's conviction of, or a\nplea of guilty or no contest to, a felony under the laws of the United States or\nany state of the United States after exhaustion of all appeals; or\n\n              (ii) Borrower's intentional failure to provide services to the\nCompany on a full-time basis (except during any approved vacations, holidays or\nabsences for disability, family emergency or illness), but only if:\n\n                   A. such failure to provide services has caused material harm\nto the Company and has persisted for a period of not less than fifteen (15)\nconsecutive business days or thirty (30) total business days within any twelve\n(12) month period;\n\n                   B. Borrower has received written notice from the Board of\nDirectors signed by a majority of the non-employee directors of the Company\nspecifying in reasonable detail the grounds for determining that Borrower has\nfailed to perform services to the Company on a full-time basis;\n\n                   C. if requested by Borrower, an independent third-party\narbitrator designated by Borrower within fifteen (15) days after receipt of such\nnotice and accepted by a majority of the non-employee directors of the Company\n(or, if Borrower does not designate an arbitrator within such fifteen (15)-day\nperiod, an arbitrator designated by a majority of the non-employee directors of\nthe Company within thirty (30) days after delivery of such notice and accepted\nby Borrower) has, within thirty (30) days after such arbitrator's designation,\n(1) reviewed the factual basis for the notice from the Board of Directors and\n(2) made a determination that cause for termination of Borrower exists under\nthis paragraph;\n\n                   D. upon the receipt of the written notice by Borrower notice\npursuant to (B) above, Borrower has an opportunity to cure such failure within\nthirty (30) days after receiving such written notice; and\n\n                   E. the arbitrator has made a determination in the\ndetermination referred to in (C) above, based on a review of the relevant facts,\nthat Borrower has failed to cure such failure during such thirty (30)-day cure\nperiod.\n\n                                        3\n\n\n\nFor purposes of this subsection (a), the quality or competency of Borrower's\nperformance or the results obtained by such performance shall not be relevant.\nThe Company shall pay the fees and expenses of the arbitrator referred to in (C)\nabove. The Lender shall have the burden of proving that Borrower's employment\nhas been terminated for cause.\n\n           (b) \"Change in Control\" means\n\n               (i)   the consummation of a merger or consolidation of the\nCompany with or into another entity or any other corporate reorganization, if\nmore than 50% of the combined voting power of the continuing or surviving\nentity's securities outstanding immediately after such merger, consolidation or\nother reorganization is owned by persons who were not stockholders of the\nCompany immediately prior to such merger, consolidation or other reorganization;\n\n               (ii)  the sale, transfer or other disposition of all or\nsubstantially all of the Company's assets; or\n\n               (iii) any transaction as a result of which any person is the\n\"beneficial owner\" (as defined in Rule 13d-3 under the Exchange Act), directly\nor indirectly, of securities of the Company representing at least 50% of the\ntotal voting power represented by the Company's then outstanding voting\nsecurities. For purposes of this Paragraph (d), the term \"person\" shall have the\nsame meaning as when used in Sections 13(d) and 14(d) of the Exchange Act but\nshall exclude (i) a trustee or other fiduciary holding securities under an\nemployee benefit plan of the Company or of a Parent or Subsidiary and (ii) a\ncorporation owned directly or indirectly by the stockholders of the Company in\nsubstantially the same proportions as their ownership of the common stock of the\nCompany.\n\nA transaction shall not constitute a Change in Control if its sole purpose is to\nchange the state of the Company's incorporation or to create a holding company\nthat will be owned in substantially the same proportions by the persons who held\nthe Company's securities immediately before such transaction.\n\n           (c) \"Exchange Act\" means the Securities Exchange Act of 1934, as\namended.\n\n           (d) \"Involuntary Termination\" means the termination of Borrower's\nemployment with the Company which occurs by reason of:\n\n               (i)   Borrower's involuntary dismissal or discharge by the\nCompany for reasons other than for Cause, or\n\n               (ii)  Borrower's death, Permanent Disability (as defined below)\nor voluntary termination of employment which, in the case of voluntary\ntermination follows (A) a change in Borrower's position with the Company which\nmaterially reduces Borrower's level of responsibility or results in his no\nlonger reporting to the Chief Executive Officer, (B) a reduction in Borrower's\nlevel of base salary or bonus target or (C) a relocation of Borrower's place of\n\n                                        4\n\n\n\nemployment by more than twenty-five (25) miles, provided and only if such\nchange, reduction or relocation is effected by the Company without Borrower's\nconsent. \"Permanent Disability\" means the Borrower's inability due to disease or\ninjury to perform the substantial duties of his position for a period exceeding\n90 days.\n\n           (e) \"Voluntary Resignation\" means Borrower's voluntary termination of\nemployment with Company for any reason other than reasons that would constitute\nan Involuntary Termination.\n\n                                        5\n\n\n\n           IN WITNESS WHEREOF, the undersigned have executed this Agreement the\nday and year first above written.\n\n                                  BORROWER\n\n\n                                  \/s\/ Robert M. Calderoni\n                                  -----------------------------------\n                                  ROBERT M. CALDERONI\n\n\n                                  19753 Minocqua Court\n                                  Saratoga, CA 95070\n\n\n                                  LENDER\n\n                                  \/s\/ [ * ]\n                                  -----------------------------------\n                                  GOLDEN BEAR REAL ESTATE, L.L.C.\n\n                                        6\n\n\n\n                           EXHIBIT A TO LOAN AGREEMENT\n\n                                 Promissory Note\n\n                                       E-1\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6749],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9544],"class_list":["post-40064","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-ariba-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40064","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40064"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40064"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40064"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40064"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}