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EXHIBIT 10.01
SECURED FULL RECOURSE PROMISSORY NOTE
San Diego, California
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[ADD TOTAL PRINCIPAL] [ADD EFFECTIVE DATE]
Reference is made to that certain STOCK OPTION EXERCISE AGREEMENT (the "PURCHASE
AGREEMENT") of even date herewith, by and between the undersigned (the
"PURCHASER") and HNC Software, Inc., a Delaware corporation (the "COMPANY"),
issued to Purchaser under a stock plan of the Company or any of its subsidiaries
or companies acquired by the Company through merger or otherwise (each of such
plans is referred to herein as "PLAN"). This Secured Full Recourse Promissory
Note (the "NOTE") is being tendered by Purchaser to the Company as PART OF the
total purchase price of the Shares (as defined below) pursuant to the Purchase
Agreement.
1. OBLIGATION. In exchange for the issuance to the Purchaser
pursuant to the Purchase Agreement of _______ shares of the Company's Common
Stock (the "SHARES"), receipt of which is hereby acknowledged, Purchaser hereby
promises to pay to the order of the Company on or before the earliest of a) the
sale of the Shares pledged pursuant to a Stock Pledge Agreement dated of even
date herewith between the Company and Purchaser (the "PLEDGE AGREEMENT"); b) the
expiration date of the stock option agreement pursuant to which the Purchase
Agreement is executed; c) the Purchaser's termination of employment or other
service with the Company; or d) December 31, 2000, at the Company's principal
place of business located at 5935 Cornerstone Ct. W. San Diego, CA 92121 or at
such other place as the Company may direct, the principal sum of
________________________ Dollars ($__________) together with interest compounded
monthly on the unpaid principal at the rate of nine percent (9%), which rate is
not less than the minimum rate established pursuant to Section 1274(d) of the
Internal Revenue Code of 1986, as amended, on the earliest date on which there
was a binding contract in writing for the purchase of the Shares; 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.
2. SECURITY. Performance of Purchaser's obligations under this
Note is secured by a security interest in the Shares granted to the Company by
Purchaser under the Pledge Agreement. If the Purchaser is not an employee or
director of the Company or subsidiary of Company, Purchase must pledge other
collateral acceptable to Company.
3. EVENTS OF DEFAULT. Purchaser 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 Purchaser's failure to make any payment when due
under this Note; (ii) Purchaser's service with the Company or subsidiary has
ended (as set forth in the Plan); (iii) the failure of any representation or
warranty in the Pledge Agreement to have been true, the failure of Purchaser to
perform any obligation under the Pledge Agreement, or upon any other breach by
the Purchaser of the Pledge Agreement; (iv) any voluntary or involuntary
transfer of any of the Shares or any interest therein (except a transfer to the
Company); (v) upon the filing regarding the Purchaser of any voluntary or
involuntary petition for relief under the United States Bankruptcy Code or the
initiation of any proceeding under federal law or law of any other jurisdiction
for the general relief of debtors; or (vi) upon the execution by Purchaser of an
assignment for the benefit of creditors or the appointment of a receiver,
custodian, trustee or similar party to take possession of Purchaser's assets or
property.
4. ACCELERATION; REMEDIES ON DEFAULT. Upon the occurrence of any
Event of Default, at the option of the Company, all principal and other amounts
owed under this Note shall become immediately due and payable without notice or
demand on the part of the Company, and the Company
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will have, in addition to its rights and remedies under this Note, the Pledge
Agreement, full recourse against any real, personal, tangible or intangible
assets of Purchaser, and may pursue any legal or equitable remedies that are
available to it. In full or partial payment of any amounts due under this Note
in the event of Default, Purchaser expressly authorizes the Company to withhold
up to a) 25% of the amount of each of Purchaser's paycheck or bonus from Company
(after other reductions for taxes and benefits); b) 100% of any expense
reimbursement; or c) 100% of any bonus payable (after other reductions for taxes
and benefits) with respect to the distribution of of Retek shares to stock
holders of record on September 15, 2000. BY SIGNING THIS NOTE, PURCHASER
EXPRESSLY ACKNOWLEDGES THAT THE PAYMENT OF ANY CASH BONUS TO WHICH PURCHASER MAY
BECOME ENTITLED IN CONNECTION WITH THE RETEK DISTRIBUTION REFERRED TO IN c) IN
THE PRECEDING SENTENCE WILL BE DEFERRED UNTIL AFTER DECEMBER 31, 2000 AND THAT
IN THE EVENT OF DEFAULT UNDER THIS NOTE, PURCHASER EXPRESSLY AUTHORIZES THE
COMPANY TO OFFSET AS PROVIDED IN c) ABOVE.
5. RESERVED.
6. PREPAYMENT. Prepayment of principal and/or other amounts owed
under this Note may be made at any time without penalty. Unless otherwise agreed
in writing by the Company, 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, and (iii) lastly to the outstanding
principal.
7. GOVERNING LAW; WAIVER. The validity, construction and
performance of this Note will be governed by the internal laws of the State of
California, excluding that body of law pertaining to conflicts of law. Purchaser
hereby waives presentment, notice of non-payment, notice of dishonor, protest,
demand and diligence.
8. ATTORNEYS' FEES. If suit is brought for collection of this
Note, Purchaser 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, Purchaser has executed this Note as of the
date and year first above written.
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Purchaser's Name [type or print] Purchaser's Signature
[SIGNATURE PAGE TO HNC SOFTWARE INC. SECURED FULL RECOURSE PROMISSORY NOTE]
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STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement (the "PLEDGE AGREEMENT") is made and
entered into as of _______________, _____ [INSERT DATE] between HNC Software,
Inc., a Delaware corporation (the "COMPANY"), and _____________ (the "PLEDGOR").
Capitalized terms that are not defined herein shall have the meanings ascribed
to them in the Secured Full Recourse Promissory Note of even date herewith
delivered by Pledgor to the Company (the "NOTE").
R E C I T A L S
A. In exchange for delivery of the Note to the Company, the
Company has issued and sold to Pledgor ________ shares of its Common Stock,
$0.001 par value per share, (the "SHARES") pursuant to the terms and conditions
of that certain Purchase Agreement.
B. Pledgor has agreed that repayment of the Note will be secured
by the pledge of the Shares pursuant to this Pledge Agreement.
NOW, THEREFORE, the parties agree as follows:
1. CREATION OF SECURITY INTEREST. Pursuant to the provisions of
the California Commercial Code, Pledgor hereby grants to the Company, and the
Company hereby accepts, a first and present security interest in (i) the Shares,
(ii) all Dividends (as defined in Section 5 hereof), (iii) all Additional
Securities (as defined in Section 6 hereof), to secure payment of the Note and
performance of all Pledgor's obligations under this Pledge Agreement. Pledgor
herewith delivers to the Company Common Stock certificate(s) No(s). __________,
representing all the Shares, together with one or more stock power(s) for each
certificate so delivered in the form attached as an Exhibit to the Purchase
Agreement, duly executed (with the date and number of shares left blank) by
Pledgor and Pledgor's spouse, if any and (iv) such other property acceptable to
Company if Purchaser is not an employee or director of the Company or subsidiary
of Company. For purposes of this Pledge Agreement, the Shares, all Dividends,
and all Additional Securities will hereinafter be collectively referred to as
the "COLLATERAL." Pledgor agrees that the Collateral will be deposited with and
held by the Escrow Holder (as defined in the below) and that, notwithstanding
anything to the contrary in the Purchase Agreement, for purposes of carrying out
the provisions of this Pledge Agreement, Escrow Holder will act solely for the
Company as its agent.
2. REPRESENTATIONS AND WARRANTIES AND COVENANTS REGARDING
COLLATERAL. Pledgor hereby represents and warrants to the Company that Pledgor
has good title (both record and beneficial) to the Collateral, free and clear of
all claims, pledges, security interests, liens or encumbrances of every nature
whatsoever, and that Pledgor has the right to pledge and grant the Company the
security interest in the Collateral granted under this Pledge Agreement. Pledgor
further agrees that, until all sums due under the Note have been paid in full,
and all of Purchaser's obligations under this Pledge Agreement have been
performed, Purchaser will not, without the Company's prior written consent, (i)
sell, assign or transfer, or attempt to sell, assign or transfer, any of the
Collateral, or (ii) grant or create, or attempt to grant or create, any security
interest, lien, pledge, claim or other encumbrance with respect to any of the
Collateral or (iii) suffer or permit to continue upon any of the Collateral
during the term of this Pledge Agreement, an attachment, levy, execution or
statutory lien.
3. RIGHTS ON DEFAULT. Upon an occurrence of an Event of Default
under the Note, the Company will have full power to sell, assign and deliver or
otherwise dispose the whole or any part of the Collateral at any broker's
exchange or elsewhere, at public or private sale, at the option of the
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Company, in order to satisfy any part of the obligations of Pledgor now existing
or hereinafter arising under the Note or under this Pledge Agreement. On any
such sale, the Company or its assigns may purchase all or any part of the
Collateral. In addition, at its sole option, the Company may elect to retain all
the Collateral in full satisfaction of Pledgor's obligation under the Note, in
accordance with the provisions and procedures set forth in the California
Uniform Commercial Code. Pledgor agrees at the Company's request, to cooperate
with the Company in connection with the disposition of any and all of the
Collateral and to execute and deliver any documents which the Company shall
reasonably request to permit disposition of the Collateral.
4. ADDITIONAL REMEDIES. The rights and remedies granted to the
Company herein upon an Event of Default will be in addition to all the rights,
powers and remedies of the Company under the California Uniform Commercial Code
and applicable law and such rights, powers and remedies will be exercisable by
the Company with respect to all of the Collateral. Pledgor agrees that the
Company's reasonable expenses of holding the Collateral, preparing it for resale
or other disposition, and selling or otherwise disposing of the Collateral,
including attorneys' fees and other legal expenses, will be deducted from the
proceeds of any sale or other disposition and will be included in the amounts
Pledgor must tender to redeem the Collateral. All rights, powers and remedies of
the Company will be cumulative and not alternative. Any forbearance or failure
or delay by the Company in exercising any right, power or remedy hereunder will
not be deemed to be a waiver of any such right, power or remedy and any single
or partial exercise of any such right, power or remedy hereunder will not
preclude the further exercise thereof.
5. DIVIDENDS; VOTING. All dividends hereinafter declared on or
payable with respect to any Collateral during the term of this Pledge Agreement
(excluding only ordinary cash dividends, which will be payable to Pledgor so
long as no Event of Default has occurred under the Note) (the "DIVIDENDS") will
be immediately delivered to the Company to be held in pledge under this Pledge
Agreement. Notwithstanding this Pledge Agreement, so long as Pledgor owns the
Shares and no Event of Default has occurred under the Note, Pledgor will be
entitled to vote any shares comprising the Collateral, subject to any proxies
granted by Pledgor.
6. ADJUSTMENTS. In the event that during the term of this Pledge
Agreement, any stock dividend, reclassification, readjustment, stock split or
other change is declared or made with respect to the Collateral, or if warrants
or any other rights, options or securities are issued in respect of the
Collateral, (the "ADDITIONAL SECURITIES") then all new, substituted and/or
additional shares or other securities issued by reason of such change or by
reason of the exercise of such warrants, rights, options or securities, will be
(if delivered to Pledgor, immediately surrendered to the Company and) pledged to
the Company to be held under the terms of this Pledge Agreement as and in the
same manner as the Collateral is held hereunder.
7. ESCROW HOLDER. The Escrow Holder shall be the Company or its
designee.
8. REDELIVERY OF COLLATERAL; NO RELEASE FOR PARTIAL PAYMENT.
(a) Until all obligations of Pledgor under the Note and
under this Pledge Agreement have been satisfied in full, all Collateral will
continue to be held in pledge under this Pledge Agreement
(b) Upon performance of all Pledgor's obligations under
the Note and this Pledge Agreement, and subject to the terms and conditions of
the Purchase Agreement, the Company will immediately redeliver the Collateral to
Pledgor and this Pledge Agreement will terminate.
9. FURTHER ASSURANCES. Pledgor shall, at the Company's request,
execute and deliver such further documents and take such further actions as the
Company shall reasonably request to perfect and maintain the Company's security
interest in the Collateral, or in any part thereof.
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10. SUCCESSORS AND ASSIGNS. This Pledge Agreement will inure to
the benefit of the respective heirs, personal representatives, successors and
assigns of the parties hereto.
11. GOVERNING LAW; SEVERABILITY. This Pledge Agreement will be
governed by and construed in accordance with the internal laws of the State of
California, excluding that body of law relating to conflicts of law. Should one
or more of the provisions of this Pledge Agreement be determined by a court of
law to be illegal or unenforceable, the other provisions nevertheless will
remain effective and will be enforceable.
12. MODIFICATION; ENTIRE AGREEMENT. This Pledge Agreement will
not be amended without the written consent of both parties hereto. This Pledge
Agreement, together with the Note constitute the entire agreement of the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings related to such subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this Pledge
Agreement as of the date and year first above written.
HNC SOFTWARE INC. PLEDGOR
By:
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(Signature)
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(Please print name) (Please print name)
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(Please print title)
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EXHIBIT 1
STOCK POWER AND ASSIGNMENT
SEPARATE FROM STOCK CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Stock Option Exercise
Agreement No. ________ dated as of _______________, _____, (the "AGREEMENT"),
the undersigned hereby sells, assigns and transfers unto
_______________________________, __________ shares of the Common Stock, $0.001
par value per share, of HNC Software, Inc., a Delaware corporation (the
"COMPANY"), standing in the undersigned's name on the books of the Company
represented by Certificate No(s). ______ delivered herewith, and does hereby
irrevocably constitute and appoint the Secretary of the Company as the
undersigned's attorney-in-fact, with full power of substitution, to transfer
said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE USED AS
AUTHORIZED BY THE AGREEMENT AND ANY EXHIBITS THERETO.
Dated: _______________, _____
PURCHASER
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(Signature)
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(Please Print Name)
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(Spouse's Signature, if any)
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(Please Print Spouse's Name)
[ ] Check this box if you do not have a
spouse.
INSTRUCTIONS TO PURCHASER: Please do not fill in any blanks other than the
signature line. The purpose of this Stock Power and Assignment is to enable the
Company to acquire the shares upon a default under Purchaser's Note without
requiring additional signatures on the part of the Purchaser or Purchaser's
Spouse.
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EXHIBIT 2
SPOUSE CONSENT
The undersigned spouse of ______________________________ (the
"PURCHASER") has read, understands, and hereby approves the Stock Option
Exercise Agreement between Purchaser and the Company (the "AGREEMENT"). In
consideration of the Company's granting my spouse the right to purchase the
Shares as set forth in the Agreement, the undersigned hereby agrees to be
irrevocably bound by the Agreement and further agrees that any community
property interest I may have in the Shares shall similarly be bound by the
Agreement. The undersigned hereby appoints Purchaser as my attorney-in-fact with
respect to any amendment or exercise of any rights under the Agreement.
Date:
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Print Name of Purchaser's Spouse
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Signature of Purchaser's Spouse
Address:
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