EXHIBIT 10.21
NAVIANT, INC.
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Agreement") made as of this 25th
day of January, 2000 by and between Naviant, Inc., a Delaware corporation (the
"Corporation") and ____________________ ("Pledgor").
RECITALS
A. In connection with the purchase of __________ shares of the
Corporation's Common Stock (the "Purchased Shares") on the date of this
Agreement from the Corporation, Pledgor has issued that certain promissory note
(the "Note") dated January 25, 2000 payable to the order of the Corporation in
the principal amount of $________________.
B. Such Note is secured by the Purchased Shares and other collateral
upon the terms set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, it is hereby agreed as follows:
1. Grant of Security Interest. Pledgor hereby grants the
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Corporation a security interest in, and assigns, transfers to and pledges with
the Corporation, the following securities and other property (collectively, the
"Collateral"):
(i) the Purchased Shares delivered to and deposited with the
Corporation as collateral for the Note;
(ii) any and all new, additional or different securities or
other property subsequently distributed with respect to the Purchased Shares
which are to be delivered to and deposited with the Corporation pursuant to the
requirements of Paragraph 3 of this Agreement;
(iii) any and all other property and money which is delivered to
or comes into the possession of the Corporation pursuant to the terms of this
Agreement; and
(iv) the proceeds of any sale, exchange or disposition of the
property and securities described in subparagraphs (i), (ii) or (iii) above.
2. Warranties. Pledgor hereby warrants that Pledgor is the owner of
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the Collateral and has the right to pledge the Collateral and that the
Collateral is free from all liens, adverse claims and other security interests
(other than those created hereby).
3. Duty to Deliver. Any new, additional or different securities or
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other property (other than regular cash dividends) which may now or hereafter
become distributable with
respect to the Collateral by reason of (i) any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change
affecting the Common Stock as a class without the Corporation's receipt of
consideration or (ii) any merger, consolidation or other reorganization
affecting the capital structure of the Corporation shall, upon receipt by
Pledgor be promptly delivered to and deposited with the Corporation as part of
the Collateral hereunder. Any such securities shall be accompanied by one or
more properly-endorsed stock power assignments.
4. Payment of Taxes and Other Charges. Pledgor shall pay, prior to
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the delinquency date, all taxes, liens, assessments and other charges against
the Collateral, and in the event of Pledgor's failure to do so, the Corporation
may at its election pay any or all of such taxes and other charges without
contesting the validity or legality thereof. The payments so made shall become
part of the indebtedness secured hereunder and until paid shall bear interest at
the minimum per annum rate, compounded semi-annually, required to avoid the
imputation of interest income to the Corporation and compensation income to
Pledgor under the Federal tax laws.
5. Stockholder Rights. So long as there exists no event of default
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under Paragraph 10 of this Agreement, Pledgor may exercise all stockholder
voting rights and be entitled to receive any and all regular cash dividends paid
on the Collateral and all proxy statements and other stockholder materials
pertaining to the Collateral.
6. Rights and Powers of Corporation. The Corporation may, without
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obligation to do so, exercise at any time and from time to time one or more of
the following rights and powers with respect to any or all of the Collateral:
(i) subject to the applicable limitations of Paragraph 9,
accept in its discretion other property of Pledgor in exchange for all or part
of the Collateral and release Collateral to Pledgor to the extent necessary to
effect such exchange, and in such event the other property received in the
exchange shall become part of the Collateral hereunder;
(ii) perform such acts as are necessary to preserve and protect
the Collateral and the rights, powers and remedies granted with respect to such
Collateral by this Agreement; and
(iii) transfer record ownership of the Collateral to the
Corporation or its nominee and receive, endorse and give receipt for, or collect
by legal proceedings or otherwise, dividends or other distributions made or paid
with respect to the Collateral, provided and only if there exists at the time an
outstanding event of default under Paragraph 10 of this Agreement. Any cash sums
which the Corporation may so receive shall be applied to the payment of the Note
and any other indebtedness secured hereunder, in such order of application as
the Corporation deems appropriate. Any remaining cash shall be paid over to
Pledgor.
Any action by the Corporation pursuant to the provisions of this
Paragraph may be taken without notice to Pledgor. Expenses reasonably incurred
in connection with such action
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shall be payable by Pledgor and form part of the indebtedness secured hereunder
as provided in Paragraph 12.
7. Care of Collateral. The Corporation shall exercise reasonable
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care in the custody and preservation of the Collateral. However, the Corporation
shall have no obligation to (i) initiate any action with respect to, or
otherwise inform Pledgor of, any conversion, call, exchange right, preemptive
right, subscription right, purchase offer or other right or privilege relating
to or affecting the Collateral, (ii) preserve the rights of Pledgor against
adverse claims or protect the Collateral against the possibility of a decline in
market value or (iii) take any action with respect to the Collateral requested
by Pledgor unless the request is made in writing and the Corporation determines
that the requested action will not unreasonably jeopardize the value of the
Collateral as security for the Note and other indebtedness secured hereunder.
Subject to the limitations of Paragraph 9, the Corporation may at any
time release and deliver all or part of the Collateral to Pledgor, and the
receipt thereof by Pledgor shall constitute a complete and full acquittance for
the Collateral so released and delivered. The Corporation shall accordingly be
discharged from any further liability or responsibility for the Collateral, and
the released Collateral shall no longer be subject to the provisions of this
Agreement.
8. Transfer of Collateral. In connection with the transfer or
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assignment of the Note (whether by negotiation, discount or otherwise), the
Corporation may transfer all or any part of the Collateral, and the transferee
shall thereupon succeed to all the rights, powers and remedies granted the
Corporation hereunder with respect to the Collateral so transferred. Upon such
transfer, the Corporation shall be fully discharged from all liability and
responsibility for the transferred Collateral.
9. Release of Collateral. Provided all indebtedness secured
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hereunder (other than payments not yet due and payable under the Note) shall at
the time have been paid in full and there does not otherwise exist any event of
default under Paragraph 10, the Purchased Shares, together with any additional
Collateral which may hereafter be pledged and deposited hereunder, shall be
released from pledge and returned to Pledgor in accordance with the following
provisions:
(i) Upon payment or prepayment of principal under the Note,
together with payment of all accrued interest to date, one or more of the
Purchased Shares held as Collateral hereunder shall (subject to the applicable
limitations of Paragraphs 9(iii) and 9(v) below) be released to Pledgor within
30 days after such payment or prepayment. The number of the shares to be so
released shall be equal to the number obtained by multiplying (i) the total
number of Purchased Shares held under this Agreement at the time of the payment
or prepayment, by (ii) a fraction, the numerator of which shall be the amount of
the principal paid or prepaid and the denominator of which shall be the unpaid
principal balance of the Note immediately prior to such payment or prepayment.
In no event, however, shall any fractional shares be released.
(ii) Any additional Collateral which may hereafter be pledged and
deposited with the Corporation (pursuant to the requirements of Paragraph 3)
with respect to the Purchased Shares shall be released at the same time the
particular shares of Common Stock to which the
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additional Collateral relates are to be released in accordance with the
applicable provisions of Paragraph 9(i).
(iii) Under no circumstances, however, shall any Purchased
Shares or any other Collateral be released if previously applied to the payment
of any indebtedness secured hereunder. In addition, in no event shall any
Purchased Shares or other Collateral be released pursuant to the provisions of
Paragraph 9(i) or 9(ii) if, and to the extent, the fair market value of the
Common Stock and all other Collateral which would otherwise remain in pledge
hereunder after such release were effected would be less than the unpaid
principal and accrued interest under the Note.
(iv) For all valuation purposes under this Agreement, the fair
market value per share of Common Stock on any relevant date shall be determined
in accordance with the following provisions:
(A) If the Common Stock is at the time traded on the
Nasdaq National Market, the fair market value shall be the closing selling price
per share of Common Stock on the date in question, as such prices are reported
by the National Association of Securities Dealers on its Nasdaq system or any
successor system. If there is no reported closing selling price for the Common
Stock on the date in question, then the closing selling price on the last
preceding date for which such quotation exists shall be determinative of fair
market value.
(B) If the Common Stock is at the time listed on the
American Stock Exchange or the New York Stock Exchange, then the fair market
value shall be the closing selling price per share of Common Stock on the date
in question on the securities exchange serving as the primary market for the
Common Stock, as such price is officially quoted in the composite tape of
transactions on such exchange. If there is no reported sale of Common Stock on
such exchange on the date in question, then the fair market value shall be the
closing selling price on the exchange on the last preceding date for which such
quotation exists.
(C) If the Common Stock is at the time neither listed on
any securities exchange nor traded on the Nasdaq National Market, the fair
market value shall be determined by the Corporation's Board of Directors after
taking into account such factors as the Board shall deem appropriate.
(v) In the event the Collateral becomes in whole or in part
comprised of "margin securities" within the meaning of Section 207.2(i) of
Regulation G of the Federal Reserve Board, then no Collateral shall thereafter
be substituted for any Collateral under the provisions of Paragraph 6(i) or be
released under Paragraph 9(i) or (ii), unless there is compliance with each of
the following additional requirements:
(A) The substitution or release must not increase the
amount by which the indebtedness secured hereunder at the time of such
substitution or release exceeds the maximum loan value (as defined below) of the
Collateral immediately prior to such substitution or release.
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(B) The substitution or release must not cause the amount of
indebtedness secured hereunder at the time of such substitution or release to
exceed the maximum loan value of the Collateral remaining after such
substitution or release is effected.
(C) For purposes of this Paragraph 9(v), the maximum loan value
of each item of Collateral shall be determined on the day the substitution or
release is to be effected and shall, in the case of the shares of Common Stock
and any additional Collateral (other than margin securities), equal the good
faith loan value thereof (as defined in Section 207.2(e)(1) of Regulation G) and
shall, in the case of all margin securities (other than the Common Stock), equal
50% of the current market value of such securities.
10. Events of Default. The occurrence of one or more of the
following events shall constitute an event of default under this Agreement:
(i) the failure of Pledgor to pay, when due under the Note,
any installment of principal or accrued interest after any grace period set
forth in the Note has expired, if any; or
(ii) the occurrence of any other acceleration event specified
in the Note; or
(iii) the failure of Pledgor to perform any obligation imposed
upon Pledgor by reason of this Agreement; or
(iv) the breach of any warranty of Pledgor contained in this
Agreement.
Upon the occurrence of any such event of default, the Corporation
may, at its election, declare the Note and all other indebtedness secured
hereunder to become immediately due and payable and may exercise any or all of
the rights and remedies granted to a secured party under the provisions of the
California Uniform Commercial Code (as now or hereafter in effect), including
(without limitation) the power to dispose of the Collateral by public or private
sale or to accept the Collateral in full payment of the Note and all other
indebtedness secured hereunder.
Any proceeds realized from the disposition of the Collateral
pursuant to the foregoing power of sale shall be applied first to the payment of
expenses incurred by the Corporation in connection with the disposition, then to
the payment of the Note and finally to any other indebtedness secured hereunder.
Any surplus proceeds shall be paid over to Pledgor. However, in the event such
proceeds prove insufficient to satisfy all obligations of Pledgor under the
Note, then Pledgor shall remain personally liable for the resulting deficiency.
11. Other Remedies. The rights, powers and remedies granted to the
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Corporation pursuant to the provisions of this Agreement shall be in addition to
all rights, powers and remedies granted to the Corporation under any statute or
rule of law. Any forbearance, failure or delay by the Corporation in exercising
any right, power or remedy under this Agreement shall not be deemed to be a
waiver of such right, power or remedy. Any single or partial exercise of any
right, power or remedy under this Agreement shall not preclude the further
exercise thereof, and every right, power and remedy of the Corporation under
this Agreement shall continue in
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full force and effect unless such right, power or remedy is specifically waived
by an instrument executed by the Corporation.
12. Costs and Expenses. All costs and expenses (including reasonable
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attorneys fees) incurred by the Corporation in the exercise or enforcement of
any right, power or remedy granted it under this Agreement shall become part of
the indebtedness secured hereunder and shall constitute a personal liability of
Pledgor payable immediately upon demand and bearing interest until paid at the
minimum per annum rate, compounded semi-annually, required to avoid the
imputation of interest income to the Corporation and compensation income to
Pledgor under the Federal tax laws.
13. Applicable Law. This Agreement shall be governed by and
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construed in accordance with the laws of the Commonwealth of Pennsylvania
without resort to that its conflict-of-laws rules.
14. Successors. This Agreement shall be binding upon the Corporation
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and its successors and assigns and upon Pledgor and the executors, heirs and
legatees of Pledgor's estate.
15. Severability. If any provision of this Agreement is held to be
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invalid under applicable law, then such provision shall be ineffective only to
the extent of such invalidity, and neither the remainder of such provision nor
any other provisions of this Agreement shall be affected thereby.
IN WITNESS WHEREOF, this Agreement has been executed by Pledgor and
the Corporation on this 25/th/ day of January, 2000.
NAVIANT, INC.
By: ___________________________
Xxxxxxx X. Xxxxx
Senior Vice President and
Chief Financial Officer
PLEDGOR
_______________________________
_______________________________
Address: 00 Xxxxxx Xxxxxxxxx, #000
Xxxxxxx Xxxxxx, XX 00000
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