Exhibit 4.8
STOCK PLEDGE AGREEMENT
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This Stock Pledge Agreement (this "Agreement"), dated as of August 31, 2006,
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among Laurus Master Fund, Ltd. (the "Pledgee"), Trinity Learning Corporation, a
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Utah corporation (the "Company"), and each of the other undersigned parties
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(other than the Pledgee) (the Company and each such other undersigned party, a
"Pledgor" and collectively, the "Pledgors").
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BACKGROUND
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The Company has entered into a Security Agreement dated as of the date hereof
(as amended, modified, restated or supplemented from time to time, the "Security
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Agreement"), pursuant to which the Pledgee provides or will provide certain
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financial accommodations to the Company and certain subsidiaries of the Company.
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In order to induce the Pledgee to provide or continue to provide the financial
accommodations described in the Security Agreement, each Pledgor has agreed to
pledge and grant a security interest in the collateral described herein to the
Pledgee on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Defined Terms. All capitalized terms used herein which are not defined
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shall have the meanings given to them in the Security Agreement.
2. Pledge and Grant of Security Interest. To secure the full and punctual
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payment and performance of (the following clauses (a) and (b), collectively, the
"Obligations") (a) the obligations under the Security Agreement and the
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Ancillary Agreements referred to in the Security Agreement (the Security
Agreement and the Ancillary Agreements, as each may be amended, restated,
modified and/or supplemented from time to time, collectively, the "Documents")
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and (b) all other obligations and liabilities of each Pledgor to the Pledgee
whether now existing or hereafter arising, direct or indirect, liquidated or
unliquidated, absolute or contingent, due or not due and whether under, pursuant
to or evidenced by a note, agreement, guaranty, instrument or otherwise (in each
case, irrespective of the genuineness, validity, regularity or enforceability of
such Obligations, or of any instrument evidencing any of the Obligations or of
any collateral therefor or of the existence or extent of such collateral, and
irrespective of the allowability, allowance or disallowance of any or all of
such in any case commenced by or against any Pledgor under Xxxxx 00, Xxxxxx
Xxxxxx Code, including, without limitation, obligations of each Pledgor for
post-petition interest, fees, costs and charges that would have accrued or been
added to the Obligations but for the commencement of such case), each Pledgor
hereby pledges, assigns, hypothecates, transfers and grants a security interest
to Pledgee in all of the following (the "Collateral"):
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(a) the shares of stock or other equity interests set forth on Schedule A
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annexed hereto and expressly made a part hereof (together with any additional
shares of stock or
other equity interests acquired by any Pledgor, the "Pledged Stock"), the
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certificates representing the Pledged Stock and all dividends, cash, instruments
and other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Pledged
Stock;
(b) all additional shares of stock or other equity interests of any issuer
(each, an "Issuer") of the Pledged Stock from time to time acquired by any
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Pledgor in any manner, including, without limitation, stock dividends or a
distribution in connection with any increase or reduction of capital,
reclassification, merger, consolidation, sale of assets, combination of shares,
stock split, spin-off or split-off (which shares shall be deemed to be part of
the Collateral), and the certificates representing such additional shares, and
all dividends, cash, instruments and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of such shares; and
(c) all options and rights, whether as an addition to, in substitution of or
in exchange for any shares of any Pledged Stock and all dividends, cash,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
such options and rights.
3. Delivery of Collateral. All certificates representing or evidencing the
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Pledged Stock shall be delivered to and held by or on behalf of Pledgee pursuant
hereto and shall be accompanied by duly executed instruments of transfer or
assignments in blank, all in form and substance satisfactory to Pledgee. Each
Pledgor hereby authorizes the Issuer upon demand by the Pledgee to deliver any
certificates, instruments or other distributions issued in connection with the
Collateral directly to the Pledgee, in each case to be held by the Pledgee,
subject to the terms hereof. Upon the occurrence and during the continuance of
an Event of Default (as defined below), the Pledgee shall have the right, during
such time in its discretion and without notice to the Pledgor, to transfer to or
to register in the name of the Pledgee or any of its nominees any or all of the
Pledged Stock. In addition, the Pledgee shall have the right at such time to
exchange certificates or instruments representing or evidencing Pledged Stock
for certificates or instruments of smaller or larger denominations.
4. Representations and Warranties of each Pledgor. Each Pledgor jointly and
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severally represents and warrants to the Pledgee (which representations and
warranties shall be deemed to continue to be made until all of the Obligations
have been paid in full and each Document and each agreement and instrument
entered into in connection therewith has been irrevocably terminated) that:
(a) the execution, delivery and performance by each Pledgor of this
Agreement and the pledge of the Collateral hereunder do not and will not result
in any violation of any agreement, indenture, instrument, license, judgment,
decree, order, law, statute, ordinance or other governmental rule or regulation
applicable to any Pledgor;
(b) this Agreement constitutes the legal, valid, and binding obligation of
each Pledgor enforceable against each Pledgor in accordance with its terms;
(c) (i) all Pledged Stock owned by each Pledgor is set forth on Schedule A
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hereto and (ii) each Pledgor is the direct and beneficial owner of each share of
the Pledged Stock;
(d) all of the shares of the Pledged Stock have been duly authorized,
validly issued and are fully paid and nonassessable;
(e) no consent or approval of any person, corporation, governmental body,
regulatory authority or other entity, is or will be necessary for (i) the
execution, delivery and performance of this Agreement, (ii) the exercise by the
Pledgee of any rights with respect to the Collateral or (iii) the pledge and
assignment of, and the grant of a security interest in, the Collateral
hereunder;
(f) there are no pending or, to the best of Pledgor's knowledge, threatened
actions or proceedings before any court, judicial body, administrative agency or
arbitrator which may materially adversely affect the Collateral;
(g) each Pledgor has the requisite power and authority to enter into this
Agreement and to pledge and assign the Collateral to the Pledgee in accordance
with the terms of this Agreement;
(h) each Pledgor owns each item of the Collateral and, except for the pledge
and security interest granted to Pledgee hereunder, the Collateral shall be,
immediately following the closing of the transactions contemplated by the
Documents, free and clear of any other security interest, mortgage, pledge,
claim, lien, charge, hypothecation, assignment, offset or encumbrance whatsoever
(collectively, "Liens");
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(i) there are no restrictions on transfer of the Pledged Stock contained in
the certificate of incorporation or by-laws (or equivalent organizational
documents) of the Issuer or otherwise which have not otherwise been enforceably
and legally waived by the necessary parties;
(j) none of the Pledged Stock has been issued or transferred in violation of
the securities registration, securities disclosure or similar laws of any
jurisdiction to which such issuance or transfer may be subject;
(k) the pledge and assignment of the Collateral and the grant of a security
interest under this Agreement vest in the Pledgee all rights of each Pledgor in
the Collateral as contemplated by this Agreement; and
(l) The Pledged Stock constitutes one hundred percent (100%) of the issued
and outstanding shares of capital stock of each Issuer.
5. Covenants. Each Pledgor jointly and severally covenants that, until the
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Obligations shall be indefeasibly satisfied in full and each Document and each
agreement and instrument entered into in connection therewith is irrevocably
terminated:
(a) No Pledgor will sell, assign, transfer, convey, or otherwise dispose of
its rights in or to the Collateral or any interest therein; nor will any Pledgor
create, incur or permit to exist any Lien whatsoever with respect to any of the
Collateral or the proceeds thereof other than that created hereby.
(b) Each Pledgor will, at its expense, defend Pledgee's right, title and
security interest in and to the Collateral against the claims of any other
party.
(c) Each Pledgor shall at any time, and from time to time, upon the written
request of Pledgee, execute and deliver such further documents and do such
further acts and things as Pledgee may reasonably request in order to effectuate
the purposes of this Agreement including, but without limitation, delivering to
Pledgee, upon the occurrence of an Event of Default, irrevocable proxies in
respect of the Collateral in form satisfactory to Pledgee. Until receipt
thereof, upon an Event of Default that has occurred and is continuing beyond any
applicable grace period, this Agreement shall constitute Pledgor's proxy to
Pledgee or its nominee to vote all shares of Collateral then registered in each
Pledgor's name.
(d) No Pledgor will consent to or approve the issuance of (i) any additional
shares of any class of capital stock or other equity interests of the Issuer; or
(ii) any securities convertible either voluntarily by the holder thereof or
automatically upon the occurrence or nonoccurrence of any event or condition
into, or any securities exchangeable for, any such shares, unless, in either
case, such shares are pledged as Collateral pursuant to this Agreement.
(e) Each Pledgor agrees to execute and deliver to each Issuer that is a
limited liability company or a limited partnership a control acknowledgment
("Control Acknowledgement") substantially in the form of Exhibit A hereto. Each
Pledgor shall cause each such Issuer to acknowledge in writing its receipt and
acceptance thereof. Such Control Acknowledgement shall instruct such Issuer to
follow instructions from Pledgee without any Pledgor's consultation or consent.
6. Voting Rights and Dividends. In addition to the Pledgee's rights and
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remedies set forth in Section 8 hereof, in case an Event of Default shall have
occurred and be continuing, beyond any applicable cure period, the Pledgee shall
(i) be entitled to vote the Collateral, (ii) be entitled to give consents,
waivers and ratifications in respect of the Collateral (each Pledgor hereby
irrevocably constituting and appointing the Pledgee, with full power of
substitution, the proxy and attorney-in-fact of each Pledgor for such purposes)
and (iii) be entitled to collect and receive for its own use cash dividends paid
on the Collateral. No Pledgor shall be permitted to exercise or refrain from
exercising any voting rights or other powers if, in the reasonable judgment of
the Pledgee, such action would have a material adverse effect on the value of
the Collateral or any part thereof; and, provided, further, that each Pledgor
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shall give at least five (5) days' written notice of the manner in which such
Pledgor intends to exercise, or the reasons for refraining from exercising, any
voting rights or other powers other than with respect to any election of
directors and voting with respect to any incidental matters. Following the
occurrence of an Event of Default, all dividends and all other distributions in
respect of any of the Collateral, shall be delivered to the Pledgee to hold as
Collateral and shall, if received by any Pledgor, be received in trust for the
benefit of the Pledgee, be segregated from the other property or funds of
any other Pledgor, and be forthwith delivered to the Pledgee as Collateral in
the same form as so received (with any necessary endorsement).
7. Event of Default. An "Event of Default" under this Agreement shall occur
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upon the happening of any of the following events subject to any applicable
grace period:
(a) An "Event of Default" under any Document or any agreement or note
related to any Document shall have occurred and be continuing beyond any
applicable cure period;
(b) Any Pledgor shall default in the performance of any of its obligations
under any Document, including, without limitation, this Agreement, and such
default shall not be cured during the cure period applicable thereto;
(c) Any representation or warranty of any Pledgor made herein, in any
Document or in any agreement, statement or certificate given in writing pursuant
hereto or thereto or in connection herewith or therewith shall be false or
misleading in any material respect;
(d) Any portion of the Collateral is subjected to a levy of execution,
attachment, distraint or other judicial process or any portion of the Collateral
is the subject of a claim (other than by the Pledgee) of a Lien or other right
or interest in or to the Collateral and such levy or claim shall not be cured,
disputed or stayed within a period of thirty (30) business days after the
occurrence thereof; or
(e) Any Pledgor shall (i) apply for, consent to, or suffer to exist the
appointment of, or the taking of possession by, a receiver, custodian, trustee,
liquidator or other fiduciary of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of creditors, (iii)
commence a voluntary case under any state or federal bankruptcy laws (as now or
hereafter in effect), (iv) be adjudicated a bankrupt or insolvent, (v) file a
petition seeking to take advantage of any other law providing for the relief of
debtors, (vi) acquiesce to, or fail to have dismissed, within thirty (30) days,
any petition filed against it in any involuntary case under such bankruptcy
laws, or (vii) take any action for the purpose of effecting any of the
foregoing.
8. Remedies. In case an Event of Default shall have occurred and is
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continuing, the Pledgee may:
(a) Transfer any or all of the Collateral into its name, or into the name of
its nominee or nominees;
(b) Exercise all corporate rights with respect to the Collateral including,
without limitation, all rights of conversion, exchange, subscription or any
other rights, privileges or options pertaining to any shares of the Collateral
as if it were the absolute owner thereof, including, but without limitation, the
right to exchange, at its discretion, any or all of the Collateral upon the
merger, consolidation, reorganization, recapitalization or other readjustment
of the Issuer thereof, or upon the exercise by the Issuer of any right,
privilege or option pertaining to any of the Collateral, and, in connection
therewith, to deposit and deliver any and all of the Collateral with any
committee, depository, transfer agent, registrar or other designated agent upon
such terms and conditions as it may determine, all without liability except to
account for property actually received by it; and
(c) Subject to any requirement of applicable law, sell, assign and deliver
the whole or, from time to time, any part of the Collateral at the time held by
the Pledgee, at any private sale or at public auction, with or without demand,
advertisement or notice of the time or place of sale or adjournment thereof or
otherwise (all of which are hereby waived, except such notice as is required by
applicable law and cannot be waived), for cash or credit or for other property
for immediate or future delivery, and for such price or prices and on such terms
as the Pledgee in its sole discretion may determine, or as may be required by
applicable law.
Each Pledgor hereby waives and releases any and all right or equity of
redemption, whether before or after sale hereunder. At any such sale, unless
prohibited by applicable law, the Pledgee may bid for and purchase the whole or
any part of the Collateral so sold free from any such right or equity of
redemption. All moneys received by the Pledgee hereunder, whether upon sale of
the Collateral or any part thereof or otherwise, shall be held by the Pledgee
and applied by it as provided in Section 10 hereof. No failure or delay on the
part of the Pledgee in exercising any rights hereunder shall operate as a waiver
of any such rights nor shall any single or partial exercise of any such rights
preclude any other or future exercise thereof or the exercise of any other
rights hereunder. The Pledgee shall have no duty as to the collection or
protection of the Collateral or any income thereon nor any duty as to
preservation of any rights pertaining thereto, except to apply the funds in
accordance with the requirements of Section 10 hereof. The Pledgee may exercise
its rights with respect to property held hereunder without resort to other
security for or sources of reimbursement for the Obligations. In addition to
the foregoing, Pledgee shall have all of the rights, remedies and privileges of
a secured party under the Uniform Commercial Code of New York (the "UCC")
regardless of the jurisdiction in which enforcement hereof is sought.
9. Private Sale. Each Pledgor recognizes that the Pledgee may be unable to
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effect (or to do so only after delay which would adversely affect the value that
might be realized from the Collateral) a public sale of all or part of the
Collateral by reason of certain prohibitions contained in the Securities Act,
and may be compelled to resort to one or more private sales to a restricted
group of purchasers who will be obliged to agree, among other things, to acquire
such Collateral for their own account, for investment and not with a view to the
distribution or resale thereof. Each Pledgor agrees that any such private sale
may be at prices and on terms less favorable to the seller than if sold at
public sales and that such private sales shall be deemed to have been made in a
commercially reasonable manner. Each Pledgor agrees that the Pledgee has no
obligation to delay sale of any Collateral for the period of time necessary to
permit the Issuer to register the Collateral for public sale under the
Securities Act.
10. Proceeds of Sale. The proceeds of any collection, recovery, receipt,
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appropriation, realization or sale of the Collateral shall be applied by the
Pledgee as follows:
(a) First, to the payment of all costs, reasonable expenses and charges of
the Pledgee and to the reimbursement of the Pledgee for the prior payment of
such costs, reasonable expenses and charges incurred in connection with the care
and safekeeping of the Collateral (including, without limitation, the reasonable
expenses of any sale or any other disposition of any of the Collateral),
attorneys' fees and reasonable expenses, court costs, any other fees or expenses
incurred or expenditures or advances made by Pledgee in the protection,
enforcement or exercise of its rights, powers or remedies hereunder;
(b) Second, to the payment of the Obligations, in whole or in part, in such
order as the Pledgee may elect, whether or not such Obligations is then due;
(c) Third, to such persons, firms, corporations or other entities as
required by applicable law including, without limitation, Section 9-615(a)(3) of
the UCC; and
(d) Fourth, to the extent of any surplus to the Pledgors or as a court of
competent jurisdiction may direct.
In the event that the proceeds of any collection, recovery, receipt,
appropriation, realization or sale are insufficient to satisfy the Obligations,
each Pledgor shall be jointly and severally liable for the deficiency plus the
costs and fees of any attorneys employed by Pledgee to collect such deficiency.
11. Waiver of Marshaling. Each Pledgor hereby waives any right to compel
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any marshaling of any of the Collateral.
12. No Waiver. Any and all of the Pledgee's rights with respect to the
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Liens granted under this Agreement shall continue unimpaired, and Pledgor shall
be and remain obligated in accordance with the terms hereof, notwithstanding (a)
the bankruptcy, insolvency or reorganization of any Pledgor, (b) the release or
substitution of any item of the Collateral at any time, or of any rights or
interests therein, or (c) any delay, extension of time, renewal, compromise or
other indulgence granted by the Pledgee in reference to any of the Obligations.
Each Pledgor hereby waives all notice of any such delay, extension, release,
substitution, renewal, compromise or other indulgence, and hereby consents to be
bound hereby as fully and effectively as if such Pledgor had expressly agreed
thereto in advance. No delay or extension of time by the Pledgee in exercising
any power of sale, option or other right or remedy hereunder, and no failure by
the Pledgee to give notice or make demand, shall constitute a waiver thereof, or
limit, impair or prejudice the Pledgee's right to take any action against any
Pledgor or to exercise any other power of sale, option or any other right or
remedy.
13. Expenses. The Collateral shall secure, and each Pledgor shall pay to
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Pledgee on demand, from time to time, all reasonable costs and expenses,
(including but not limited to, reasonable attorneys' fees and costs, taxes, and
all transfer, recording, filing and other charges) of, or incidental to, the
custody, care, transfer, administration of the Collateral or any other
collateral, or in any way relating to the enforcement, protection or
preservation of the rights or remedies of the Pledgee under this Agreement or
with respect to any of the Obligations.
14. The Pledgee Appointed Attorney-In-Fact and Performance by the Pledgee.
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Upon the occurrence of an Event of Default, each Pledgor hereby irrevocably
constitutes and appoints the Pledgee as such Pledgor's true and lawful
attorney-in-fact, with full power of substitution, to execute, acknowledge and
deliver any instruments and to do in such Pledgor's name, place and stead, all
such acts, things and deeds for and on behalf of and in the name of such
Pledgor, which such Pledgor could or might do or which the Pledgee may deem
necessary, desirable or convenient to accomplish the purposes of this Agreement,
including, without limitation, to execute such instruments of assignment or
transfer or orders and to register, convey or otherwise transfer title to the
Collateral into the Pledgee's name. Each Pledgor hereby ratifies and confirms
all that said attorney-in-fact may so do and hereby declares this power of
attorney to be coupled with an interest and irrevocable. If any Pledgor fails
to perform any agreement herein contained, the Pledgee may itself perform or
cause performance thereof, and any costs and expenses of the Pledgee incurred in
connection therewith shall be paid by the Pledgors as provided in Section 10
hereof.
15. Waivers. THE PARTIES HERETO DESIRES THAT THEIR DISPUTES BE RESOLVED BY
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A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST
COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR
OTHERWISE BETWEEN LAURUS, AND/OR ANY COMPANY ARISING OUT OF, CONNECTED WITH,
RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEN IN CONNECTION
WITH THIS AGREEMENT, ANY OTHER DOCUMENT OR THE TRANSACTIONS RELATED HERETO OR
THERETO.
16. Recapture. Notwithstanding anything to the contrary in this Agreement,
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if the Pledgee receives any payment or payments on account of the Obligations,
which payment or payments or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver, or any other party under the United States
Bankruptcy Code, as amended, or any other federal or state bankruptcy,
reorganization, moratorium or insolvency law relating to or affecting the
enforcement of creditors' rights generally, common law or equitable doctrine,
then to the extent of any sum not finally retained by the Pledgee, each
Pledgor's obligations to the Pledgee shall be reinstated and this Agreement
shall remain in full force and effect (or be reinstated) until payment shall
have been made to Pledgee, which payment shall be due on demand.
17. Captions. All captions in this Agreement are included herein for
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convenience of reference only and shall not constitute part of this Agreement
for any other purpose.
18. Miscellaneous.
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(a) This Agreement constitutes the entire and final agreement among the
parties with respect to the subject matter hereof and may not be changed,
terminated or otherwise varied except by a writing duly executed by the parties
hereto.
(b) No waiver of any term or condition of this Agreement, whether by delay,
omission or otherwise, shall be effective unless in writing and signed by the
party sought to be charged, and then such waiver shall be effective only in the
specific instance and for the purpose for which given.
(c) In the event that any provision of this Agreement or the application
thereof to any Pledgor or any circumstance in any jurisdiction governing this
Agreement shall, to any extent, be invalid or unenforceable under any applicable
statute, regulation, or rule of law, such provision shall be deemed inoperative
to the extent that it may conflict therewith and shall be deemed modified to
conform to such statute, regulation or rule of law, and the remainder of this
Agreement and the application of any such invalid or unenforceable provision to
parties, jurisdictions, or circumstances other than to whom or to which it is
held invalid or unenforceable shall not be affected thereby, nor shall same
affect the validity or enforceability of any other provision of this Agreement.
(d) This Agreement shall be binding upon each Pledgor, and each Pledgor's
successors and assigns, and shall inure to the benefit of the Pledgee and its
successors and assigns.
(e) Any notice or other communication required or permitted pursuant to this
Agreement shall be given in accordance with the Security Agreement.
(f) THIS AGREEMENT AND THE OTHER DOCUMENTS SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(g) EACH PLEDGOR HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS
LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY PLEDGOR,
ON THE ONE HAND, AND THE PLEDGEE, ON THE OTHER HAND, PERTAINING TO THIS
AGREEMENT OR ANY OF THE OTHER DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR ANY OF THE OTHER DOCUMENTS, PROVIDED, THAT EACH
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PLEDGOR ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY
A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK; AND
FURTHER PROVIDED, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO
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PRECLUDE THE PLEDGEE FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
OTHER JURISDICTION TO COLLECT THE INDEBTEDNESS, TO REALIZE ON THE COLLATERAL OR
ANY OTHER SECURITY FOR THE INDEBTEDNESS, OR TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER IN FAVOR OF THE PLEDGEE. EACH PLEDGOR EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH PLEDGOR HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS.
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EACH PLEDGOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH PLEDGOR AT THE ADDRESS SET FORTH IN THE SECURITY AGREEMENT AND
THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF THE SUCH
PLEDGOR'S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S.
MAILS, PROPER POSTAGE PREPAID.
(h) It is understood and agreed that any person or entity that desires to
become a Pledgor hereunder, or is required to execute a counterpart of this
Agreement after the date hereof pursuant to the requirements of any Document,
shall become a Pledgor hereunder by (x) executing a Joinder Agreement in form
and substance satisfactory to the Pledgee, (y) delivering supplements to such
exhibits and annexes to such Documents as the Pledgee shall reasonably request
and/or set forth in such joinder agreement and (z) taking all actions as
specified in this Agreement as would have been taken by such Pledgor had it been
an original party to this Agreement, in each case with all documents required
above to be delivered to the Pledgee and with all documents and actions required
above to be taken to the reasonable satisfaction of the Pledgee.
(i) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which when taken together shall
constitute one and the same agreement. Any signature delivered by a party by
facsimile transmission shall be deemed an original signature hereto.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and year first written above.
TRINITY LEARNING CORPORATION
By:
Name:
Title:
TRINITY WORKPLACE LEARNING CORPORATION
By:
Name:
Title:
LAURUS MASTER FUND, LTD.
By:
Name:
Title
SCHEDULE A to the Stock Pledge Agreement
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Pledged Stock
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Pledgor Issuer Class of Stock Stock Certificate Par Value Number % of
Number of Shares outstanding Shares
Trinity Learning Corporation Trinity Workplace
Learning Corporation Common Stock C-2 no par value 100 100%
Trinity Workplace
Learning Corporation None
EXHIBIT A
FORM OF CONTROL ACKNOWLEDGMENT
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ISSUER MEMBERSHIP INTEREST OWNERS:
[Issuer] [Pledgor]
________________________
Reference is hereby made to that certain Stock Pledge Agreement, dated as
of August __, 2006 (the "PLEDGE AGREEMENT"), between the above-referenced
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members ( "PLEDGORS") of ____________, a ___________ [limited liability
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company][limited partnership], (a "[ISSUER]") and Laurus Master Fund, Ltd., a
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Cayman Islands company ("LAURUS"). Capitalized terms used but not otherwise
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defined herein shall have the meanings ascribed thereto in the Pledge Agreement.
[Issuer] is hereby instructed by Pledgors that all of Pledgors' right,
title and interest in and to all of Pledgors' rights in connection with any
[membership][partnership] interests in [Issuer] now and hereafter owned by
Pledgors are subject to a pledge and security interest in favor of Laurus.
Pledgors hereby instructs [Issuer] to act upon any instruction delivered to it
by the Laurus with respect to the Collateral without seeking further instruction
from Pledgors, and, by its execution hereof, [Issuer] agrees to do so.
[Issuer], by its written acknowledgment and acceptance hereof, hereby
acknowledges receipt of a copy of the aforementioned Pledge Agreement and agrees
promptly to note on its books the security interest granted under such Pledge
Agreement. [Issuer] also waives any rights or requirements at any time
hereafter to receive a copy of such Pledge Agreement in connection with the
registration of any Collateral in the name of the Laurus or its nominee or the
exercise of voting rights by the Laurus or its nominee.
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IN WITNESS WHEREOF, Pledgors have caused this Control Acknowledgment to be duly
signed and delivered by its officer duly authorized as of this _____ day of
___________ 2006.
PLEDGOR.
By:
Name:
Title:
Acknowledged and accepted this
______ day of __________ 2006.
[ISSUER]
By:
Name:
Title:
