1
EXHIBIT 10.33
SECURED FULL RECOURSE PROMISSORY NOTE
San Diego, California
$_______________________ JANUARY 2, 2001
[ADD TOTAL PRINCIPAL] [ADD EFFECTIVE DATE]
Reference is made to that certain Secured Full Recourse Promissory Note made and
given by the undersigned ("PAYOR") to HNC Software Inc., a Delaware corporation
(the "COMPANY") attached hereto as Exhibit 1 (the "PRIOR NOTE") that was
tendered to the Company by Payor as partial payment for the shares of the Common
Stock of the Company purchased by Payor pursuant to that certain Stock Option
Exercise Agreement or Agreements between Payor and the Company dated as of the
same date as the Prior Note (the "PURCHASE AGREEMENT"). The Purchase Agreement
was executed by Payor under certain stock plans of the Company (each of such
plans is referred to herein as "PLAN"). This Secured Full Recourse Promissory
Note (this "NOTE") is being tendered by Payor to the Company as a modification
and extension of the Prior Note and will replace the Prior Note.
1. OBLIGATION. In modification and extension of the Prior
Note, which was tendered by the Payor to the Company in exchange for the
issuance to the Payor, pursuant to the Purchase Agreement, of ______ shares of
the Company's Common Stock (the "SHARES"), receipt of which is hereby
acknowledged and _____, shares of Retek Inc., receipt of which is also hereby
acknowledged, Payor hereby promises to pay to the order of the Company on
or before the Maturity Date (as defined below),at the Company's principal
place of business located at 5935 Cornerstone Ct. W. San Diego, CA 92121
or at such other place as the Company may direct, the principal sum of
___________________________________________________ Dollars ($__________)
together with interest accrued on the unpaid principal at the rate of ten
percent (10%) per annum (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. As used herein, the term "MATURITY DATE"
means that time and date which is the earliest to occur of: (a) the sale of any
of the Shares or other securities that are pledged to the Company pursuant to a
Stock Pledge Agreement dated of even date with this Note between the Company and
Payor (the "PLEDGE AGREEMENT"); (b) the expiration date of the stock option
agreement pursuant to which the Purchase Agreement is executed; (c) the Payor's
termination of employment or other service with the Company or any subsidiary of
the Company; (d) the occurrence of an Event of Default as provided in Section 3
below; or (e) September 14, 2001.
2. SECURITY. The performance of Payor's obligations under
this Note shall be secured by a first security interest in the Shares and
certain other collateral granted to the Company by Payor under the Pledge
Agreement. If the Payor 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.
(a) Payor 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) Payor's failure to make any payment when due under this Note;
(ii) Payor's employment or other service with the Company or a subsidiary of the
Company has Terminated (as set forth in the Plan); (iii) the failure of any
representation
1
2
or warranty of Payor in the Pledge Agreement to have been true, the failure of
Payor to perform any obligation of Payor under the Pledge Agreement, or any
other breach by the Payor of the Pledge Agreement; (iv) any voluntary or
involuntary transfer of any of the Shares or any of the other collateral pledged
by Payor to the Company under the Pledge Agreement or any interest therein
(except a transfer to the Company); (v) the filing by or against Payor of any
voluntary or involuntary petition for relief under the United States Bankruptcy
Code or the initiation of any proceeding by or against Payor under federal law
or any law of any other jurisdiction for the general relief of debtors; (vi) the
execution by Payor of an assignment for the benefit of creditors or the
appointment of a receiver, custodian, trustee or similar party to take
possession of Payor's assets or property; or (vii) a decrease in the aggregate
value of the Collateral below the limit set forth in Section 3(b) that is deemed
to be an Event of Default under Section 3(b) below.
(b) Event of Default due to decline in Value of
Collateral. As noted in Section 2 and pursuant to the Pledge Agreement, Payor is
granting the Company a first security interest in, and is pledging to the
Company, the shares, certain shares of the common stock of Retek, Inc., a
Delaware corporation ("RETEK") and other properties, including any stock
dividends declared or paid on the Shares or on such Retek shares (the Shares,
the Retek shares and such other properties and assets pledged to the Company
under the Pledge Agreement being hereinafter collectively referred to as the
"COLLATERAL") as security for the repayment of this Note. Beginning on the first
Friday after the date of this Note, and on each successive Friday thereafter (or
the next trading day, if such Friday is not a trading day) while any balance is
still due and outstanding under this Note (each such Friday being hereinafter
called a "VALUATION DATE"), all Collateral shall be valued by the Company as
follows: (a) the Shares and the shares of Retek common stock included in the
Collateral and any other publicly traded securities that may be included in the
Collateral shall be deemed to have a value equal to the publicly announced
closing price of such shares or securities on the Valuation Date; and (b) any
Collateral that does not consist of publicly traded securities shall be valued
by the Audit Committee of HNC's Board of Directors in good faith as of the
applicable Valuation Date. If the aggregate value of all the Collateral on a
Valuation Date (determined as provided above) is less than the total amount of
principal and accrued interest remaining due under this Note, then such fact
shall constitute the occurrence of an Event of Default (within the meaning of
Sections 1 and 3(a)) under this Note effective as of the next Valuation Date
occurring after the aforementioned Valuation Date ("NEXT VALUATION DATE")
unless, on and as of the next Valuation Date, the aggregate value of all the
Collateral (determined as of the next Valuation Date in the manner provided
above) is greater than the amount of all the unpaid principal and accrued
interest outstanding under this Note as of the next Valuation Date, after taking
into account any partial payments on this Note made by Payor on or prior to the
next Valuation Date.
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 in full
without notice or demand on the part of the Company, and the Company 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
Payor, 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, Payor expressly authorizes the Company to withhold up to (a) 25% of the
amount of each of Payor's paycheck or bonus from Company (after other reductions
for taxes and benefits); and (b) 100% of any expense reimbursement.
6. PREPAYMENT. Prepayment of all or a portion of any
outstanding 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 on this Note (including but not limited to any payments made as
contemplated by Section 3(b) to keep the balance due under this Note from
exceeding the value of the Collateral) 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. While partial payments are permitted, no security shall be released
until the Note is paid in full.
2
3
7. GOVERNING LAW; WAIVERS. 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. Payor
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, Payor 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, Payor has executed this Note as of the date
and year first above written.
__________________________________ __________________________________
Payor's Name [type or print] Payor's Signature
[SIGNATURE PAGE TO SECURED FULL RECOURSE PROMISSORY NOTE PAYABLE TO
HNC SOFTWARE INC.]
3
4
STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement (the "PLEDGE AGREEMENT") is made and
entered into as of JANUARY 2, 2001 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 ("Note") of even date herewith
delivered by Pledgor to the Company on any extension thereof (such note and
extension referred to as 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") and ________ shares of Retek Inc.
Common Stock, pursuant to the terms and conditions of that certain Purchase
Agreement. In connection therewith, Pledgor made a promissory note payable
("PRIOR NOTE") to the Company and executed a pledge agreement pursuant to that
promissory note.
B. The Note has been entered into as a modification and
extension of the Prior Note and Pledgor has agreed that repayment of the Note
will be secured by the pledge of the Shares pursuant to this Pledge Agreement,
which is a modification and extension of the prior 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,
including all Retek shares received as a dividend in connection with ownership
of Shares (iii) all Dividends (as defined in Section 5 hereof), (iv) 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).
_______________________________, and Retek Common Stock certificate(s) No(s).
_________, 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
Payor is not an employee or director of the Company or subsidiary of Company.
For purposes of this Pledge Agreement, the Shares, including Retek 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 Payor's obligations under this Pledge Agreement have been performed,
Payor 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
4
5
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
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.
5
6
(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.
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:________________________________ ___________________________________
(Signature)
___________________________________ ___________________________________
(Please print name) (Please print name)
___________________________________
(Please print title)
6
7
FINANCIAL DISCLOSURE STATEMENT
NAME:___________________________________________________________
SOCIAL SECURITY NUMBER:_________________________________________
NAME OF SPOUSE:_________________________________________________
SOCIAL SECURITY NUMBER:_________________________________________
NUMBER OF DEPENDENTS:___________________________________________
COMBINED ANNUAL INCOME:_________________________________________
COMBINED NET WORTH:_____________________________________________
COMBINED LIQUID ASSETS (INCLUDING LOAN COLLATERAL):_____________
RESIDENCE: RENT/OWN?________________________________________
ANNUAL MORTGAGE:________________________________________________
I CERTIFY, UNDER PENALTIES OF PERJURY, THAT THE INFORMATION PROVIDED ON THIS
FORM ARE TRUE, CORRECT AND COMPLETE.
SIGNATURE:__________________________________________________ DATE:______________
SIGNATURE OF SPOUSE:________________________________________ DATE:______________
7