EXHIBIT 10.3
SHARE PLEDGE AGREEMENT
THIS SHARE PLEDGE AGREEMENT (this "Agreement") is entered into as of the 1st day
of December, 2001 by and between Internet Capital Group Operations, Inc.
("ICGO") and ________ (the "Pledgor").
RECITALS:
A. Pledgor has executed and delivered the following promissory note(s)
(collectively, the "Promissory Notes") to ICGO:
Type of Loan Original Principal Amount
Promissory Note (Option Loan) $
----------------
Promissory Note (Tax Loan) $
----------------
Promissory Note (Tax Loan) $
----------------
The obligations of Pledgor pursuant to the Promissory Notes are referred
to herein collectively as the "Obligations."
B. As security for the fulfilment of the Obligations, the Pledgor has
agreed to grant a continuing security interest in and pledge and assign
certain shares of Internet Capital Group, Inc., a Delaware corporation
(the "Corporation"), held by the Pledgor in favor of ICGO.
NOW, THEREFORE, intending to be legally bound hereby and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. PLEDGE
As security for the due and timely payment and performance by the Pledgor of the
Obligations, the Pledgor hereby assigns, pledges and grants a continuing
security interest in all of his right, title and interest in and to such number
of shares in the capital of the Corporation held by the Pledgor as is determined
under Section 2 of this Agreement and any substitutions therefore and proceeds
thereof (the "Pledged Shares") to and in favor of ICGO. The Pledgor has
deposited with Xxxxxxx Xxxxx the Pledged Shares in a custodial account
administered by ICGO together with the appropriate transfer and other documents
to enable ICGO or its nominee to be registered as the owner thereof and to
transfer or sell the Pledged Shares upon any enforcement thereof. If the Pledgor
acquires any certificates evidencing shares required to be included as Pledged
Shares after the date hereof, the Pledgor shall, forthwith upon receipt of such
certificates, deliver such certificates to ICGO together with the appropriate
transfer and other documents to enable ICGO or its nominee to be registered as
the owner thereof and to transfer or sell or cause to be
-2-
transferred or sold such Pledged Shares upon any enforcement thereof. All rights
of ICGO and the security interest hereunder and all obligations of the Pledgor
hereunder shall be absolute and unconditional, irrespective of: (a) any lack of
validity or enforceability of the Promissory Notes, (b) any change in the time
or manner of payment of the Obligations or any amendment to the Promissory
Notes, (c) any other circumstance that might constitute a defence available to,
or a discharge of, the Pledgor.
2. CALCULATION OF THE NUMBER OF PLEDGED SHARES
The number of Pledged Shares subject to this Agreement shall be calculated from
time to time using the following formula, and shall be adjusted to take into
account any stock dividends, stock splits, combinations or recapitalizations:
CNRPB
----------- X OPS = Pledged Shares
ONRPB
Where CNRPB = Current Nonrecourse Principal Balance of the Obligations
as determined under the Promissory Notes,
ONRPB = Original Nonrecourse Principal Balance of the
Obligations as determined under the Promissory Notes, and
OPS = Original Pledged Shares which number is ________.
In the event that the Nonrecourse Principal Balance of the Obligations is
reduced during the term of this Agreement, promptly after such payment is made,
ICGO shall take such steps as are reasonably necessary to reduce the number of
Pledged Shares to such number of shares as results from applying the foregoing
calculation immediately following such payment. In the event that the
Nonrecourse Principal Balance of the Obligations is increased during the term of
this Agreement, promptly after such increase occurs, Pledgor shall take such
steps as are reasonably necessary to increase the number of Pledged Shares to
such number of shares as results from applying the foregoing calculation
immediately after such increase in the amount of the Obligations.
3. PROVISIONS RELATING TO THE PLEDGED SHARES
Until the making of a demand on the Pledgor under the Obligations by ICGO, the
Pledgor shall be entitled to exercise all voting rights in respect of the
Pledged Shares and the Pledgor shall be entitled to receive and deal with any
and all dividends at any time payable on or with respect to the Pledged Shares.
Following the making of a demand on the Pledgor under the Obligations by ICGO,
all rights of the Pledgor pursuant to the preceding sentence shall cease and
ICGO may enforce any and all of the rights of the Pledgor with respect to the
Pledged Shares.
4. REPRESENTATIONS AND WARRANTIES
The Pledgor hereby represents and warrants to ICGO that he is the registered and
beneficial owner of the Pledged Shares free and clear of all liens and
encumbrances of any kind other than
-3-
the security interests created by this Agreement, and has not assigned,
transferred, set over or granted a security interest or any other interest or
options in the Pledged Shares to any other person.
5. COVENANTS
The Pledgor shall take any and all necessary steps to preserve and defend the
Pledgor's and ICGO's right, title and security interest in and to all the
Pledged Shares against the claims and demands of all persons whomsoever and the
Pledgor will have good title to any other shares or assets that become Pledged
Shares hereunder and the Pledgor shall not assign, transfer, set over or grant a
security interest in or in any other manner further encumber the Pledged Shares.
6. REMEDIES
Upon the making of a demand on the Pledgor under the Obligations by ICGO, the
security interests created hereby shall immediately become enforceable and ICGO
may, forthwith or at any time thereafter, take any action, suit, remedy or
proceeding authorized or permitted by agreement of the parties or by law or in
equity.
7. RIGHTS AND REMEDIES CUMULATIVE
The rights and remedies of ICGO shall be cumulative and not in substitution for
any rights or remedies to which ICGO may be entitled under the Obligations or
which may be available at law or in equity and may be exercised whether or not
ICGO has pursued or is then pursuing any other such rights or remedies.
8. ACKNOWLEDGEMENTS
The Pledgor hereby acknowledges:
(a) receipt of a copy of this Agreement;
(b) that value has been given;
(c) that the security interests created hereby attached to the
Pledged Shares immediately upon execution and delivery of this
Agreement to ICGO and the parties have not agreed to postpone
the time of attachment of the pledge of the Pledged Shares by
the Pledgor; and
(d) that the pledge created hereby or to be created shall be and be
deemed to be effective whether the Obligations hereby secured or
any part thereof shall be advanced before, upon or after the
date of execution of this Agreement.
9. EFFECTIVE DATE
-4-
This Agreement shall become effective as of the date first written above. This
Agreement and the security interests created hereunder are in addition to and
not in substitution for any other security granted by the Pledgor to ICGO,
whether before or after the execution of this Agreement. The security interest
shall be a general and continuing security interest and shall continue in full
force and effect until terminated as provided herein.
10. TERMINATION
This Agreement shall terminate upon the earlier of (a) written agreement made
between the Pledgor and ICGO to terminate this Agreement and (b) the payment in
full of all of the Obligations.
11. POWER OF ATTORNEY
The Pledgor hereby irrevocably constitutes and appoints ICGO and any one of its
directors and officers holding office from time to time as the true and lawful
attorney of the Pledgor with power of substitution in the name of the Pledgor to
do any and all such acts and things or execute and deliver all such agreements,
documents and instruments as ICGO in its sole discretion, considers necessary or
desirable to carry out the provisions and purposes of this Agreement or to
exercise its rights and remedies hereunder. The Pledgor hereby ratifies and
agrees to ratify all acts of any such attorney taken or done in accordance with
this paragraph. This power of attorney being coupled with an interest shall not
be revoked or terminated by any act or thing and shall remain in full force and
effect until this Agreement has been terminated.
12. NOTICE
Any demand, notice or communication made or given hereunder shall be in writing
and shall be personally delivered or given by transmittal by telecopy or
facsimile transmission addressed to the respective parties at its address or
telecopy or facsimile number set forth below or to such other address or
telecopy or facsimile number as such party may designate by notice in writing to
the other party hereto:
(a) if to ICGO, at:
Internet Capital Group Operations, Inc.
000 Xxxxx Xxxx Xxxxx, Xxxxxxxx 000
Xxxxx, XX 00000
Facsimile: (000) 000-0000
(b) if to Pledgor, at:
Internet Capital Group Operations, Inc.
000 Xxxxx Xxxx Xxxxx, Xxxxxxxx 000
Xxxxx, XX 00000
Facsimile: (000) 000-0000
-5-
13. FURTHER ASSURANCES
The Pledgor will, from time to time at the request of ICGO, make and do all such
acts and things and execute and deliver all such instruments, agreements and
documents as ICGO shall reasonably request by notice in writing given to the
Pledgor in order to create, preserve, perfect, validate or otherwise protect the
security interests created hereunder, to enable ICGO to exercise and enforce any
of its rights and remedies hereunder and generally to carry out the provisions
and intentions of this Agreement.
14. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the state of
Delaware.
15. AMENDMENTS; NO IMPLIED WAIVERS; SEVERABILITY
Any change, amendment, modification, cancellation or discharge of this Agreement
or any term or provision hereof shall be in writing and signed by Pledgor and
ICGO. No course of dealing and no failure or delay on the part of ICGO in
exercising any right, remedy, power or privilege hereunder shall operate as a
waiver thereof. The provisions of this Agreement are intended to be severable.
If any provision of this Agreement shall be held invalid or unenforceable in
whole or in part, such provision shall be ineffective to the extent of such
invalidity or unenforceability without in any manner affecting the validity or
enforceability thereof.
16. SUCCESSORS AND ASSIGNS
The rights and privileges of this Agreement shall inure to the parties'
successors and assigns as such are permitted hereunder. This Agreement shall be
assignable and transferable by ICGO; however, the duties and obligations of
Pledgor may not be assigned or transferred by Pledgor.
17. COUNTERPARTS
This Agreement may be executed in counterparts, each of which, when so executed
and delivered, shall be deemed an original.
18. ENTIRE AGREEMENT
This Agreement, together with the Promissory Notes, constitutes the entire
understanding between Pledgor and ICGO with respect to the subject matter of
this Agreement supersedes all other agreements, whether written or oral, with
respect to the subject matter of this Agreement.
-6-
IN WITNESS OF WHICH this Agreement has been duly executed as of the date first
written above.
INTERNET CAPITAL GROUP OPERATIONS, INC.
By:
-------------------------------------
Name:
Title
PLEDGOR:
--------------------------------------------
Name:
