PLEDGE AGREEMENT
This PLEDGE AGREEMENT (the "Agreement"), dated as of August 13, 1998, by
and among Xxxxxxxx Investment Trust L.P. ("Xxxxxxxx Investment"), Xxxxxxxx
Ventures L.P. ("Xxxxxxxx Ventures") and Xxxxxxx X. Xxxxxxxxx ("Xxxxxxxxx"),
collectively as pledgor (each a "Pledgor" and together the "Pledgors"), and MIM
Corporation, a Delaware corporation, together with its subsidiaries, as secured
party (collectively, the "Secured Party").
WHEREAS, each Pledgor is a shareholder of Continental Managed Pharmacy
Services, Inc. (together with its subsidiaries, "Continental"); and
WHEREAS, each Pledgor is a party to that certain merger agreement dated as
of January 27, 1998, as amended to date, by and among MIM Corporation,
Continental and the other parties listed on the signature pages thereto (the
"Merger Agreement"); and
WHEREAS, pursuant to the Merger Agreement, a wholly-owned subsidiary of MIM
Corporation will be merged (the "Merger") with and into Continental and
Continental will become a wholly-owned subsidiary of MIM Corporation as a result
of the Merger; and
WHEREAS, each Pledgor presently owns beneficially and of record the
following number of Continental's common shares (the "Continental Shares"):
Xxxxxxxx Investment: 1,565 Continental Shares; Xxxxxxxx Ventures: 1,565
Continental Shares; and Xxxxxxxxx: 6,260 Continental Shares; and such
Continental Shares will be converted into the following number of shares of
common stock, par value $.0001 per share (the "MIM Common Stock"), of MIM
Corporation as a result of the Merger: Xxxxxxxx Investment: 512,678 shares;
Xxxxxxxx Ventures: 512,678 shares; and Xxxxxxxxx: 2,050,713 shares; and
WHEREAS, each Pledgor has entered into that certain Indemnification
Agreement dated August 10, 1998 (the "Indemnification Agreement") with MIM
Corporation, as a material inducement to MIM Corporation to consummate the
Merger; and
WHEREAS, in order to secure the obligations of each Pledgor under the
Indemnification Agreement, each Pledgor has agreed to pledge, assign and
hypothecate to the Secured Party the following number of Continental Shares
owned by such Pledgor (collectively, the "Pledged Shares"): Xxxxxxxx Investment:
248 Continental Shares; Xxxxxxxx Ventures: 248 Continental Shares; and
Xxxxxxxxx: 992 Continental Shares.
NOW, THEREFORE, in consideration of the foregoing and of covenants and
agreements herein provided, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
mutually agree as follows:
SECTION 1. Definitions. Except as otherwise defined herein, all capitalized
terms shall have the respective meanings given to such terms in the
Indemnification Agreement.
SECTION 2. Grant of Security Interest. Each Pledgor hereby pledges,
assigns, hypothecates, delivers and sets over to the Secured Party and grants to
the Secured Party a
continuing perfected first priority lien on and security interest in the Pledged
Shares and in all Proceeds (as defined below) therefrom (collectively, the
"Collateral") as collateral security for the prompt and complete payment and
performance when due of its respective obligations and liabilities, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, arising under, out of, or in connection with the
Indemnification Agreement or this Agreement as the same, from time to time, may
be amended, restated, replaced, extended, supplemented or otherwise modified
(the "Obligations"). For purposes of this Agreement, "Proceeds" means all
"proceeds" as such term is defined in Section 9-306(1) of the Uniform Commercial
Code on the date hereof and, in any event, shall include, without limitation,
all dividends or other income from the Pledged Shares, collections thereon or
distributions with respect thereto (including, without limitation, the receipt
by the Pledgors of MIM Common Stock as a result of the Merger).
SECTION 3. Registration of Pledge. Each Pledgor shall execute and deliver
to the Secured Party all stock certificates, proxies, stock powers and other
instruments representing or related to the Pledged Shares and the MIM Common
Stock constituting Proceeds thereof, duly endorsed or subscribed by Pledgor or
accompanied by appropriate instruments of transfer or assignment, duly executed
in blank by Pledgor, as additional Collateral. All such instruments or
certificates shall be held by the Secured Party.
SECTION 4. Power of Attorney. Each Pledgor hereby constitutes and
irrevocably appoints the Secured Party, with full power of substitution and
revocation by the Secured Party, as its true and lawful attorney-in-fact, to the
fullest extent permitted by law, for the purpose of taking any action and
executing any instrument that the Secured Party deems necessary or advisable to
accomplish the purposes of the Indemnification Agreement or this Agreement,
including, without limitation, to affix to certificates and documents
representing any Collateral the endorsements or other instruments of transfer or
assignment delivered with respect thereto and to transfer or cause the transfer
of the Collateral, or any part thereof, on the books of Continental or MIM
Corporation, as the case may be. The power of attorney granted pursuant to this
Agreement and all authority hereby conferred are granted and conferred solely to
protect the Secured Party's interest in the Collateral and shall not impose any
duty upon the Secured Party to exercise any power. This power of attorney shall
be irrevocable as one coupled with an interest until the Obligations have been
paid in full and the Indemnification Agreement has been terminated.
SECTION 5. Obligations of Pledgor. Each Pledgor represents, warrants, and
covenants to the Secured Party that:
(a) It is the sole legal, record and beneficial owner of, and has good and
marketable title to, the respective Pledged Shares and the respective Collateral
set forth in the recitals, and will upon consummation of the Merger have sole
legal, record and beneficial ownership of the number of shares of MIM Common
Stock set forth in the recitals. The Collateral described herein is subject to
no mortgage, pledge, assignment, hypothecation, security interest, encumbrance,
lien, charge, option, warrant or other encumbrance whatsoever (each, a "Lien"),
or other interest (including, without limitation, any contract or other
agreement to sell or otherwise transfer), except for the Lien created by this
Agreement. The Pledged Shares have been duly authorized, validly issued, fully
paid and are nonassessable.
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(b) It has the requisite power and authority and the legal right to
execute, deliver and perform this Agreement and the Indemnification Agreement
and any other document, instrument or agreement to be executed and delivered by
such Pledgor pursuant hereto or thereto and to create a security interest in the
respective Collateral pursuant to this Agreement.
(c) This Agreement is effective to create a legal, valid and enforceable
perfected first priority Lien on the respective Collateral, subject to no prior
Lien or to any agreement purporting to grant to any third party a security
interest in the property or assets of such Pledgor which would include the
respective Collateral. All action necessary to perfect the Lien granted by this
Agreement has been duly taken.
(d) This Agreement and the Indemnification Agreement have been duly
authorized, executed and delivered by such Pledgor and constitute valid and
legally binding obligations of such Pledgor, enforceable in accordance with
their respective terms.
(e) No security agreements or any other Lien instruments have been executed
and delivered, and no financing statements or any other notice of any Lien have
been filed in any jurisdiction, granting or purporting to grant a security
interest in or create a Lien on the respective Collateral to any party other
than the Secured Party.
(f) No consent, license, approval or authorization of, exemption by, or
registration, filing or declaration with, any governmental authority and no
consent of any other individual, partnership, firm, corporation, limited
liability company, association, joint venture, trust or other entity, or any
government or political subdivision or agency, department or instrumentality
thereof ("Person") is required to be obtained in connection with (i) the
execution, delivery, performance, validity or enforcement or priority of this
Agreement and the Indemnification Agreement or any other document, instrument or
agreement to be executed and delivered by such Pledgor pursuant hereto or
thereto, (ii) the pledge by such Pledgor of the respective Collateral to the
Secured Party pursuant to this Agreement, or (iii) the exercise by the Secured
Party of the rights provided for in this Agreement or the remedies in respect of
the respective Collateral pursuant to this Agreement; provided, however, that
Pledgors make no representation or warranty with respect to the requirements of
the Securities Act of 1933 or state securities laws.
(g) The execution, delivery and performance of this Agreement and the
Indemnification Agreement and any other document, instrument or agreement to be
executed and delivered by such Pledgor pursuant hereto or thereto, does not
conflict with or result in a breach of the terms, conditions or provisions of,
or constitute a default under, or result in a violation of any provision of any
applicable law or regulation or of any order, judgment, writ, award or decree of
any court, arbitrator or governmental authority (domestic or foreign) or of any
bond, note, indenture, mortgage, deed of trust, contract, agreement, loan
agreement, lease or other undertaking to which such Pledgor is a party or which
purports to be binding upon such Pledgor and will not result in the creation or
imposition of any Lien on any of the assets of such Pledgor, except as expressly
provided by this Agreement.
(h) There is no suit, action, proceeding, arbitration, investigation or
inquiry pending or threatened against such Pledgor with respect to this
Agreement or the Indemnification
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Agreement or any other document, instrument or agreement to be executed and
delivered by such Pledgor pursuant hereto or thereto, or the pledging of the
respective Collateral pursuant to this Agreement.
(i) It will not directly or indirectly sell, transfer, convey or otherwise
dispose of any interest in the Collateral.
(j) It will not suffer or permit to exist any Lien on or with respect to
the Collateral, except the Lien created under this Agreement.
(k) It will indemnify the Secured Party from and against any and all
claims, losses and liabilities growing out of or resulting from this Agreement
(including, without limitation, enforcement of this Agreement), except claims,
losses, or liabilities resulting from the Secured Party's bad faith, willful
misconduct or gross negligence. The Pledgors will, upon demand, pay to the
Secured Party the amount of any and all reasonable expenses, including the
reasonable fees and expenses of counsel and of any experts and agents, which the
Secured Party may incur in connection with (i) the administration and
enforcement of this Agreement, (ii) the custody or preservation of, or the sale
of, collection from, or other realization upon, any of the Pledged Shares or
Proceeds therefrom, (iii) the exercise or enforcement of any of the rights of
the Secured Party hereunder, or (iv) the failure by any Pledgor to perform or
observe any of the provisions hereof.
(l) It will, promptly upon the reasonable request of Secured Party, do,
make, procure, execute and deliver all acts, things, writings, assurances and
other documents as may be reasonably requested by Secured Party to further
enhance, preserve, establish, demonstrate, perfect or enforce the Secured
Party's rights, interests and remedies created by, provided in or emanating from
this Agreement.
(m) It shall notify Secured Party promptly and in reasonable detail of any
Lien or claim made or asserted against the respective Collateral or any portion
of the respective Collateral and of all notices received by such Pledgor with
respect to events which would be likely to have a material adverse impact on the
respective Collateral.
SECTION 6. Rights of Pledgor. (a) So long as no Pledgor is in breach of the
Indemnification Agreement or this Agreement (a "Breach"), each Pledgor shall be
entitled to vote or consent with respect to the Collateral constituting
Continental Shares or MIM Common Stock in any manner not inconsistent with this
Agreement. Upon the occurrence and during the continuance of a Breach by any
Pledgor, the Secured Party shall have the exclusive right to vote all of the
Collateral. Each Pledgor hereby grants to the Secured Party an irrevocable proxy
to vote the Collateral, which proxy shall be effective immediately upon the
occurrence of and during the continuance of a Breach by any Pledgor, and upon
request of the Secured Party, each Pledgor agrees to deliver to the Secured
Party such further evidence of such irrevocable proxy or such further
irrevocable proxy to vote the Collateral as the Secured Party may request.
(b) So long as no Breach by any Pledgor shall have occurred and be
continuing, each Pledgor shall be entitled to receive and retain any and all
cash dividends and distributions paid in respect of the respective Collateral.
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SECTION 7. Rights of the Secured Party. (a) If any Pledgor fails to perform
any agreement contained herein, the Secured Party may (but shall not be
obligated or required to) perform, or cause the performance, of such agreement.
(b) At any time upon and during the continuance of a Breach by any Pledgor,
the Secured Party may (but shall not be obligated or required to):
(i) Cause all of the Collateral to be transferred to its name or to
the name of its nominee or nominees.
(ii) Ask for, demand, collect, xxx for, recover, compromise, receive
and give acquittances and receipts for monies due or to become due under or
in respect of any of the Collateral and hold the same as part of the
Collateral, or apply the same to any of the Obligations in such manner as
the Secured Party may direct in its sole discretion;
(iii) Receive, endorse and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (ii) above
(including, without limitation, all instruments representing dividends or
other distributions in respect of the Collateral or any part thereof and
give full discharge for the same);
(iv) File any claims or take any actions or institute any proceedings
that the Secured Party may deem necessary or desirable for the collection
of any of the Collateral or otherwise to enforce compliance with the rights
of the Secured Party with respect to any of the Collateral; and
(v) Discharge any taxes or liens levied on the Collateral or pay for
the maintenance and preservation of the Collateral; the amount of such
payments, plus any and all fees, costs and expenses of the Secured Party
(including reasonable attorneys' fees and disbursements) in connection
therewith, shall, at the Secured Party's option, be reimbursed by the
Pledgors on demand.
SECTION 8. Breach; Remedies. Upon and during the continuance of a Breach by
any Pledgor:
(a) The Secured Party shall have all the rights and remedies of a secured
party under the Uniform Commercial Code with respect to all of the Collateral.
In addition, the Secured Party shall have the right, without demand of
performance or other demand, advertisement or notice of any kind, except as
specified below, to or upon Pledgor or any other Person (all and each of which
demands, advertisements and/or notices are hereby expressly waived to the extent
permitted by law), to proceed forthwith to collect, receive, appropriate and
realize upon the Collateral, or any part thereof and to proceed forthwith to
sell, assign, give an option or options to purchase, contract to sell, or
otherwise dispose of and deliver the Collateral or any part thereof in one or
more parcels at public or private sale or sales at any stock exchange, broker's
board or at any of the Secured Party's offices or elsewhere at such prices and
on such terms and restrictions (including, without limitation, a requirement
that any purchaser of all or any part of the Collateral shall be required to
purchase any securities constituting the Collateral solely for investment and
without any intention to make a distribution thereof) as the Secured Party may
deem appropriate without any liability for any loss due to decrease in the
market value
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of the Collateral during the period held. If any notification to Pledgor of the
intended disposition of the Collateral is required by law, such notification
shall be deemed reasonable and properly given if hand delivered or made by
facsimile at least three business days' prior to such disposition to the address
of each Pledgor indicated below. Any disposition of the Collateral or any part
thereof may be for cash or on credit or for future delivery without assumption
of any credit risk, with the right to the Secured Party to purchase all or any
part of the Collateral so sold at any such sale or sales, public or private,
free of any equity or right of redemption, which right or equity is, to the
extent permitted by applicable law, hereby expressly waived and released by each
Pledgor.
(b) All of the Secured Party's rights and remedies under this Agreement and
under applicable law, including but not limited to the foregoing, shall be
cumulative and not exclusive and shall be enforceable alternatively,
successively or concurrently as the Secured Party may deem expedient.
(c) If any consent, approval or authorization of, or filing with, any
governmental authority or any other person shall be necessary to effectuate any
sale or other disposition of the Collateral, or any partial disposition of the
Collateral, including, without limitation, under any federal or state securities
laws, each Pledgor agrees to execute all such applications, registrations and
other documents and instruments as may be required in connection with securing
any such consent, approval or authorization, and will otherwise use its best
efforts to secure the same. Each Pledgor further agrees to use its best efforts
to effectuate such sale or other disposition of the Collateral as the Secured
Party may deem necessary pursuant to the terms of this Agreement.
(d) Upon any sale or other disposition, the Secured Party shall have the
right to deliver, endorse, assign and transfer to the purchaser thereof the
Collateral so sold or disposed of. Each purchaser at any such sale or other
disposition, including the Secured Party, shall hold the Collateral free from
any claim or right of whatever kind, including any equity or right of
redemption. Each Pledgor specifically waives, to the extent permitted by
applicable law, all rights of stay or appraisal which Pledgor had or may have
under any rule of law or statute now existing or hereafter adopted.
(e) The Secured Party shall not be obligated to make any sale or other
disposition unless the terms thereof shall be satisfactory to it. The Secured
Party may, without notice or publication, adjourn any private or public sale,
and, upon three business days' prior notice to each Pledgor, hold such sale at
any time or place to which the same may be so adjourned. In case of any sale of
all or any part of the Collateral, on credit or future delivery, the Collateral
so sold may be retained by the Secured Party until the selling price is paid by
the purchaser thereof, but the Secured Party shall incur no liability in case of
the failure of such purchaser to take up and pay for the property so sold and,
in case of any such failure, such property may again be sold as herein provided.
SECTION 9. Disposition of Proceeds. The proceeds of any sale or disposition
of all or any part of the Collateral shall be applied (after payment of any
amounts payable to the Secured Party pursuant to Section 11 hereof) by the
Secured Party to the payment of the Obligations in such order as the Secured
Party may elect. Any surplus thereafter remaining shall be paid to the
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Pledgors, subject to the rights of any holder of a lien on the Collateral of
which the Secured Party has actual notice. If the proceeds from the sale of the
Collateral are insufficient to satisfy the Obligations, each Pledgor shall
remain liable for any deficiency.
SECTION 10. Termination. This Agreement shall:
(a) create a continuing security interest in the Collateral;
(b) remain in full force and effect until the payment in full of all
Obligations hereunder or under the Indemnification Agreement; provided, however,
that this Agreement shall terminate upon the final resolution of the Aetna
Claim, unless there is then outstanding at least one other unresolved Claim
Notice, in which case this Agreement shall then terminate upon the final
resolution of said unresolved Claim Notice;
(c) be binding upon each Pledgor and its permitted successors and assigns;
and
(d) inure to the benefit of the Secured Party and its successors,
transferees and assigns.
SECTION 11. Expenses of the Secured Party. All expenses (including, without
limitation, reasonable attorneys' fees and disbursements) actually incurred by
the Secured Party in connection with the failure by any Pledgor to perform or
observe any provision of this Agreement, the exercise or enforcement of any
rights of the Secured Party under this Agreement and the custody or preservation
of any of the Collateral and any actual or attempted sale or exchange of, or any
enforcement, collection, compromise or settlement respecting, the Collateral, or
any other action taken by the Secured Party hereunder whether directly or as
attorney-in-fact pursuant to the power of attorney or other authorization herein
conferred, shall be deemed an obligation of such Pledgor and shall be deemed an
Obligation for all purposes of this Agreement and the Secured Party may apply
the Collateral to payment of or reimbursement of itself for such liability.
SECTION 12. Secured Party's Duty. The Secured Party shall not be required
to take any action hereunder in respect of a Breach. The Secured Party shall not
be liable for any acts, omissions, errors of judgment or mistakes of fact or law
including, without limitation, acts, omissions, errors or mistakes with respect
to the Collateral, except for those arising out of or in connection with the
Secured Party's (i) gross negligence or willful misconduct, or (ii) failure to
use reasonable care with respect to the safe custody of any certificate or
instrument evidencing any of the Collateral which is in the physical possession
of the Secured Party. The Secured Party shall be under no obligation to take any
steps necessary to preserve rights in the Collateral against any prior parties
but may do so at its option, and all expenses incurred in connection therewith
shall be for the account of the Pledgors, and shall be added to the Obligations
secured hereby. The Secured Party agrees that upon termination of this
Agreement, it will execute and deliver all documents reasonably requested by any
Pledgor or any third party to evidence the release and termination of the pledge
of the Pledged Shares hereunder.
SECTION 13. Further Assurances. Each Pledgor further agrees that, at any
time and from time to time, upon written request of Secured Party, such Pledgor
will execute and deliver
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such further documents and do such further acts and things as Secured Party may
reasonably request in order to effect the purposes of this Agreement.
SECTION 14. Adjustment of Collateral. At the closing of the Merger, the
number of Pledged Shares constituting the Collateral shall be adjusted by either
adding additional shares of MIM Common Stock to the pledge hereunder, or
releasing shares of MIM Common Stock from the pledge hereunder, so that the
shares of MIM Common Stock constituting the Collateral at such time is the whole
number of shares having an aggregate value as close as possible to, and no less
than, $2.5 million (determined based on the average closing price of the MIM
Common Stock on the Nasdaq for the 20 trading days prior to the closing of the
Merger). This Agreement shall be amended at the time of the closing of the
Merger to effect the adjustment contemplated in the preceding sentence.
SECTION 15. Legends. Any certificate or other document issued in respect of
shares of MIM Common Stock which constitute Collateral shall be endorsed with
the legend set forth below:
"THESE SECURITIES ARE SUBJECT TO THE TERMS AND CONDITIONS OF THAT CERTAIN
PLEDGE AGREEMENT DATED AS OF AUGUST 13, 1998, A COPY OF WHICH IS ON FILE AT
THE PRINCIPAL OFFICES OF MIM CORPORATION."
SECTION 16. General Provisions. (a) No failure on the part of the Secured
Party to exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise by the Secured Party of any right, power or remedy hereunder preclude
any other or future exercise thereof, or the exercise of any other right, power
or remedy. The representations, covenants and agreements of each Pledgor herein
contained shall survive the date hereof.
(b) The obligations of each Pledgor under this Agreement shall remain in
full force and effect without regard to, and shall not be impaired or affected
by:
(i) any amendment or modification or addition or supplement to the
Indemnification Agreement, any document or instrument delivered in
connection therewith or any assignment or transfer thereof;
(ii) any exercise, non-exercise or waiver by the Secured Party of any
right, remedy, power or privilege under or in respect of the
Indemnification Agreement;
(iii) any waiver, consent, extension, indulgence or other action or
inaction in respect of the Indemnification Agreement or any assignment or
transfer of any thereof; or
(iv) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like, of any Pledgor or any
other Person;
in all cases, whether or not the Pledgors shall have notice or knowledge of any
of the foregoing.
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(c) No amendment or waiver of any provision of this Agreement nor consent
to any departure by any Pledgor herefrom nor release of all or any part of the
Collateral shall in any event be effective unless the same shall be in writing,
signed by the Secured Party and each Pledgor. Any such waiver or consent or
release shall be effective only in the specific instance and for the specific
purpose for which it is given.
(d) All notices under this Agreement shall be deemed given when made in
accordance with the provisions of the Indemnification Agreement.
(e) THIS AGREEMENT SHALL BE GOVERNED BY, AND INTERPRETED AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
CONFLICTS OF LAW PROVISIONS THEREOF. EACH OF THE SECURED PARTY AND EACH PLEDGOR
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
(f) Each Pledgor hereby consents to the non-exclusive jurisdiction of the
Supreme Court of the State of New York for New York County and the United States
District Court for the Southern District of New York with respect to any suit,
claim, action or proceeding arising out of or related to this Agreement or the
transactions contemplated hereby and hereby waives any objection which it may
have now or hereafter to the venue of any suit, claim, action or proceeding
arising out of or related to this Agreement or the transactions contemplated
hereby and brought in the courts specified above and also hereby waives any
claim that any such suit, claim, action or proceeding has been brought in an
inconvenient forum. Each Pledgor hereby agrees that service of process in any
such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to its address set forth in the Indemnification Agreement or at
such other address of which the Secured Party shall have been notified pursuant
to the Indemnification Agreement and agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction.
(g) If any provision of this Agreement is determined by a court of
competent jurisdiction to be unenforceable, such provision shall be
automatically reformed and construed so as to be valid, operative and
enforceable to the maximum extent permitted by the law while most nearly
preserving its original intent. The invalidity of any part of this Agreement
shall not render invalid the remainder of the Agreement.
(h) This Agreement may be executed in counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
taken together shall constitute but one and the same instrument.
(i) The section headings in this Agreement are for convenience of reference
only and shall not affect the interpretation hereof.
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(j) Notwithstanding any provision of this Agreement to the contrary, the
obligations of each Pledgor under this Agreement shall be several and not joint
and shall be allocated based upon the respective obligations of the Pledgors
under the Indemnification Agreement and enforced against the Collateral only in
accordance with such allocation. By way of example, if any obligation of
Xxxxxxxxx under the Indemnification Agreement is to be satisfied by action under
this Agreement, action shall be taken only against the Collateral pledged by
Xxxxxxxxx. Expenses and other obligations of Pledgors arising under this
Agreement with respect to the Collateral shall be allocated among the Pledgors
based upon specific Collateral, to the extent possible, and, to the extent such
allocation is not possible, shall be allocated among the Pledgors in proportion
to the value of Collateral pledged by each and continuing to be held as
Collateral pursuant to this Agreement. Upon satisfaction of all obligations of
any Pledgor under both the Indemnification Agreement and this Agreement, the
Collateral pledged by such Pledgor shall be released from this Agreement
notwithstanding the fact that any other Pledgor remains obligated under the
Indemnification Agreement or this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Pledge
Agreement as of the date first above written.
MIM CORPORATION
By: /S/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and General Counsel
XXXXXXXX INVESTMENT TRUST L.P.
By: XXXXXX X. XXXXXXXX, its general partner
/S/ XXXXXX X. XXXXXXXX
---------------------------------------
Xxxxxx X. Xxxxxxxx, General Partner
XXXXXXXX VENTURES L.P.
By: XXXXXX X. XXXXXXXX, its general partner
/S/ XXXXXX X. XXXXXXXX
---------------------------------------
Xxxxxx X. Xxxxxxxx, General Partner
XXXXXXX X. XXXXXXXXX
/S/ XXXXXXX X. XXXXXXXXX
---------------------------------------
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