[EXECUTION COPY]
PLEDGE AGREEMENT
dated as of
March 5, 2002
among
PERSEUS CAPITAL, LLC,
JPMORGAN CHASE BANK,
as Secured Party
and
JPMORGAN CHASE BANK,
as Collateral Agent
TABLE OF CONTENTS
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PAGE
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SECTION 1. THE SECURITY INTERESTS.............................................1
SECTION 2. DEFINITIONS........................................................3
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PLEDGOR..........................5
SECTION 4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COLLATERAL
AGENT.................................................................7
SECTION 5. CERTAIN COVENANTS OF PLEDGOR.......................................8
SECTION 6. ADMINISTRATION OF THE COLLATERAL AND VALUATION OF THE
SECURITIES...........................................................10
SECTION 7. INCOME AND VOTING RIGHTS IN COLLATERAL............................12
SECTION 8. REMEDIES UPON EVENTS OF DEFAULT...................................14
SECTION 9. THE COLLATERAL AGENT..............................................17
SECTION 10. MISCELLANEOUS....................................................19
SECTION 11. SET-OFF..........................................................20
SECTION 12. TERMINATION OF PLEDGE AGREEMENT..................................20
SECTION 13. ASSIGNMENT.......................................................20
Exhibit A Form of Certificate for Additional Collateral
PLEDGE AGREEMENT
THIS AGREEMENT is made as of this 5th day of March, 2002, among PERSEUS
CAPITAL, LLC, a Delaware limited liability company ("PLEDGOR"), JPMORGAN CHASE
BANK, as collateral agent (the "COLLATERAL AGENT") hereunder for the benefit of
JPMORGAN CHASE BANK ("SECURED PARTY"), and Secured Party.
WHEREAS, pursuant to the Stock Purchase Agreement (as amended from time
to time, the "STOCK PURCHASE AGREEMENT") dated as of the date hereof between
Pledgor and Secured Party, by X.X. Xxxxxx Securities Inc., as its agent, Pledgor
has agreed to sell and Secured Party has agreed to purchase, in one or more
transactions executed in tranches (each, a "TRANCHE"), up to the Maximum Number
(as defined in the Stock Purchase Agreement) of shares of common stock, par
value $.002 per share, or security entitlements in respect thereof (the "COMMON
STOCK"), of ViroPharma Incorporated, a Delaware corporation (the "ISSUER"),
subject to the terms and conditions of the Stock Purchase Agreement; and
WHEREAS, it is a condition to the obligations of Secured Party under
the Stock Purchase Agreement that Pledgor, the Collateral Agent and Secured
Party enter into this Agreement and that Pledgor grant the pledge provided for
herein;
NOW, THEREFORE, in consideration of their mutual covenants contained
herein and to secure the performance by Pledgor of Pledgor's obligations under
the Stock Purchase Agreement and the observance and performance of the covenants
and agreements contained herein and in the Stock Purchase Agreement, the parties
hereto, intending to be legally bound, hereby mutually covenant and agree as
follows:
SECTION 1. THE SECURITY INTERESTS. In order to secure the full and
punctual observance and performance of the covenants and agreements contained
herein and in the Stock Purchase Agreement:
(a) Pledgor hereby assigns, pledges and grants to the Collateral
Agent, as agent of and for the benefit of Secured Party, security interests in
and to, and a lien upon and right of set-off against, and transfers to the
Collateral Agent, as agent of and for the benefit of Secured Party, as and by
way of a security interest having priority over all other security interests,
all of Pledgor's right, title and interest in and to (i) the Pledged Items
described in Section 1(b) and 1(c); (ii) all additions to and substitutions for
such Pledged Items (including, without
limitation, any securities, instruments or other property delivered or pledged
pursuant to Section 5(a) or 6(b)) (such additions and substitutions, the
"ADDITIONS AND SUBSTITUTIONS"); (iii) all income, proceeds and collections
received or to be received, or derived or to be derived, now or at any time
hereafter (whether before or after the commencement of any proceeding under
applicable bankruptcy, insolvency or similar law, by or against Pledgor, with
respect to Pledgor) from or in connection with the Pledged Items or the
Additions and Substitutions (including, without limitation, (A) any shares of
capital stock issued by the Issuer in respect of any Common Stock constituting
Collateral or any cash, securities or other property distributed in respect of
or exchanged for any Common Stock constituting Collateral, or into which any
such Common Stock is converted, in connection with any Merger Event, and any
security entitlements in respect of any of the foregoing, (B) any obligation of
the Collateral Agent to replace any rehypothecated Collateral and (C) any
amounts paid or assets delivered to Pledgor by the Collateral Agent in respect
of dividends paid or distributions made on shares of Common Stock constituting
Collateral that have been rehypothecated); (iv) all securities and other
financial assets (each as defined in Section 8-102 of the UCC) and other funds,
property or assets from time to time held or credited as Collateral hereunder;
and (v) all powers and rights now owned or hereafter acquired under or with
respect to the Pledged Items or the Additions and the Substitutions (such
Pledged Items, such Additions and Substitutions, proceeds, collections, powers,
rights and assets held therein or credited thereto being herein collectively
called the "COLLATERAL"). The Collateral Agent shall have all of the rights,
remedies and recourses with respect to the Collateral afforded a secured party
by the UCC, in addition to, and not in limitation of, the other rights, remedies
and recourses afforded to the Collateral Agent by this Agreement.
(b) Within two Business Days following the Effective Date, Pledgor
shall deliver to the Collateral Agent in pledge hereunder Eligible Collateral
consisting of the Maximum Number of shares of Common Stock (the "INITIAL PLEDGED
SHARES"), in the manner provided in Section 6(c).
(c) In the event that the Issuer at any time issues to Pledgor in
respect of any Common Stock constituting Collateral hereunder or comprising
financial assets underlying security entitlements constituting Collateral
hereunder, any additional or substitute shares of capital stock of any class or
any cash, securities or other property distributed in respect of or exchanged
for any Collateral, or into which any such Collateral is converted, whether in
connection with any Merger Event or otherwise (or any security entitlements in
respect of the foregoing), Pledgor shall, as soon as practicable following
receipt of such additional or substitute shares of capital stock of any class or
any cash, securities or other property, pledge and deliver to the Collateral
Agent in accordance with Section
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6(c) all such shares, cash, securities, other property and security entitlements
in respect thereof as additional Collateral hereunder.
(d) The Security Interests are granted as security only and shall
not subject the Collateral Agent and Secured Party to, or transfer or in any way
affect or modify, any obligation or liability of Pledgor or the Issuer with
respect to any of the Collateral or any transaction in connection therewith.
(e) The parties hereto expressly agree that all rights, assets and
property at any time held or credited as Collateral hereunder shall be treated
as financial assets (as defined in Section 8-102 of the UCC).
(f) On or promptly after the Hedging Termination Date, the
Collateral Agent shall release to Pledgor the excess (if any) of (x) the Initial
Pledged Shares held by Collateral Agent as Collateral hereunder, over (y) the
sum of the Base Amounts for all Tranches that have been established pursuant to
the Stock Purchase Agreement.
SECTION 2. DEFINITIONS. Capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to them in the Stock Purchase
Agreement. As used herein, the following words and phrases shall have the
following meanings:
"ADDITIONS AND SUBSTITUTIONS" has the meaning provided in Section 1(a).
"AUTHORIZED OFFICER" of Pledgor means the manager of Pledgor (or any
officer thereof) as to whom Pledgor shall have delivered notice to the
Collateral Agent that such manager (or officer thereof) is authorized to act
hereunder on behalf of Pledgor.
"COLLATERAL" has the meaning provided in Section 1(a).
"COLLATERAL AGENT" means the financial institution identified as such
in the preliminary paragraph hereof, or any successor appointed in accordance
with Section 9.
"COLLATERAL EVENT OF DEFAULT" means, at any time, the occurrence of
either of the following: (A) failure of the Collateral to include, as Eligible
Collateral, at least the Maximum Deliverable Number of shares of Common Stock or
(B) failure at any time of the Security Interests to constitute valid and
perfected security interests in all of the Collateral (except where such failure
is the result of the acts or omissions of the Collateral Agent or the Secured
Party), subject to no prior or equal Lien, and, with respect to any Collateral
consisting of securities or
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security entitlements (each as defined in Section 8-102 of the UCC), as to which
Secured Party has Control, or, in each case, assertion of such by Pledgor in
writing.
"CONTROL" means "control" as defined in Section 8-106 and Section 9-106
of the UCC.
"DEFAULT SETTLEMENT DATE" has the meaning provided in Section 8(a).
"ELIGIBLE COLLATERAL" means Common Stock, PROVIDED that Pledgor has
good and marketable title thereto, free of all Liens (other than the Security
Interests) and Transfer Restrictions (other than Existing Transfer Restrictions
no greater than those to which the Initial Pledged Shares are subject) and that
the Collateral Agent has a valid, first priority perfected security interest
therein, a first lien thereon and Control with respect thereto, and PROVIDED
FURTHER that to the extent the number of shares of Common Stock pledged
hereunder exceeds at any time the Maximum Deliverable Number thereof, such
excess shares shall not be Eligible Collateral.
"EVENT OF DEFAULT" means any condition or event which constitutes an
Event of Default as defined in the Stock Purchase Agreement, or which with the
giving of notice or the lapse of time or both would, unless cured or waived,
become an Event of Default as defined in the Stock Purchase Agreement.
"EXISTING TRANSFER RESTRICTIONS" means the Transfer Restrictions on the
shares of Common Stock pledged hereunder arising solely from the fact that
Seller may be deemed an "affiliate", within the meaning of Rule 144 under the
Securities Act, of the Issuer under the Securities Act as a result of such
shares of Common Stock being "restricted securities" as defined in Rule 144
under the Securities Act.
"INITIAL PLEDGED SHARES" has the meaning provided in Section1(b).
"LOCATION" means, with respect to any party, the place such party is
"located" within the meaning of Section 9-307 of the Uniform Commercial Code as
in effect in each jurisdiction that may be deemed applicable to such party.
"MAXIMUM DELIVERABLE NUMBER" means, on any date, a number of shares of
Common Stock equal to sum of the Base Amounts for all Tranches, each of them
multiplied successively by each adjustment that shall have been calculated with
respect thereto on or prior to such date pursuant to Article 6 of the Stock
Purchase Agreement.
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"OTHER LIENS" has the meaning provided in Section 4(e).
"PLEDGED ITEMS" means, as of any date, any and all securities and
instruments delivered by Pledgor to be held by the Collateral Agent under this
Agreement as Collateral.
"REHYPOTHECATE" has the meaning provided in Section 5(f).
"SECURITY INTERESTS" means the security interests in the Collateral
created hereby.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PLEDGOR. Pledgor hereby
represents and warrants to the Collateral Agent and Secured Party that:
(a) Pledgor (i) for purposes of determining the holding period
requirements of Rule 144(d) under the Securities Act, has held the Common Stock
pledged hereunder since May, 5, 1999, (ii) owns and, at all times prior to the
release of the Collateral pursuant to the terms of this Agreement, will own such
Collateral free and clear of any Liens (other than the Security Interests) or
Transfer Restrictions (other than the Existing Transfer Restrictions) and (iii)
is not and will not become a party to or otherwise bound by any agreement, other
than this Agreement and the Stock Purchase Agreement, that (x) restricts in any
manner the rights of any present or future owner of the Collateral with respect
thereto or (y) provides any Person other than Pledgor, the Collateral Agent,
Secured Party or any securities intermediary through which any Collateral is
held (but, in the case of any such securities intermediary, only with respect to
Collateral held through it) with Control with respect to any Collateral.
(b) Other than financing statements or other similar or equivalent
documents or instruments with respect to the Security Interests, no financing
statement, security agreement or similar or equivalent document or instrument
covering all or any part of (i) the Collateral or (ii) any other general
intangibles of Pledgor is on file or of record in any jurisdiction in which such
filing or recording would be effective to perfect a lien, security interest or
other encumbrance of any kind on such Collateral or such other general
intangibles, as the case may be.
(c) All Collateral consisting of securities and all financial
assets underlying Collateral consisting of security entitlements (each as
defined in Section 8-102 of the UCC) at any time pledged hereunder is and will
be issued by an issuer organized under the laws of the United States, any State
thereof or the
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District of Columbia and (i) certificated (and the certificate or certificates
in respect of such securities or financial assets are and will be located in the
United States) and registered in the name of Pledgor or held through a
securities intermediary whose jurisdiction (within the meaning of Section
8-110(e) of the UCC) is located in the United States or (ii) uncertificated and
either registered in the name of Pledgor or held through a securities
intermediary whose jurisdiction (within the meaning of Section 8-110(e) of the
UCC) is located in the United States; PROVIDED that this representation shall
not be deemed to be breached if, at any time, any such Collateral is issued by
an issuer that is not organized under the laws of the United States, any State
thereof or the District of Columbia, and the parties hereto agree to procedures
or amendments hereto necessary to enable the Collateral Agent to maintain, for
the benefit of Secured Party, a valid and continuously perfected security
interest in such Collateral, in respect of which Secured Party will have
Control, subject to no prior Lien. The parties hereto agree to negotiate in good
faith any such procedures or amendments.
(d) Upon (i) the delivery of certificates evidencing investment
property (as defined in Section 9-102(a)(49) of the UCC) consisting of
securities to the Collateral Agent in accordance with Section 6(c)(i) or the
registration of any such investment property consisting of uncertificated
securities in the name of the Collateral Agent or its nominee in accordance with
Section 6(c)(ii), the Collateral Agent will have, for the benefit of Secured
Party, a valid and, as long as the Collateral Agent retains possession of such
certificates or such uncertificated securities remain so registered, perfected
security interest therein, in respect of which the Collateral Agent will have
Control, subject to no prior Lien and (ii) the crediting of any securities or
other financial assets underlying any such investment property consisting of
security entitlements to a securities account of the Collateral Agent in
accordance with Section 6(c)(iii), the Collateral Agent will have, for the
benefit of Secured Party, a valid and, so long as such Common Stock continues to
be credited to the account of the Collateral Agent with the applicable
securities intermediary, perfected security interest in a securities entitlement
in respect thereof, in respect of which the Collateral Agent will have Control
subject to no prior Lien.
(e) No registration, recordation or filing with any governmental
body, agency or official is required in connection with the execution and
delivery of this Agreement or necessary for the validity or enforceability
hereof or for the perfection or enforcement of the Security Interests.
(f) Pledgor has not performed and will not perform any acts that
might prevent the Collateral Agent from enforcing any of the terms of this
Agreement or that might limit the Collateral Agent in any such enforcement.
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(g) The only Location of the Pledgor is the State of Delaware.
Pledgor has had no prior names since its formation. Pledgor has not changed its
jurisdiction of formation or limited liability company structure in any way
since its formation. Pledgor has had no prior locations since its formation.
SECTION 4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COLLATERAL
AGENT. The Collateral Agent represents and warrants to, and agrees with, Pledgor
and Secured Party that:
(a) The Collateral Agent is a banking corporation, duly formed,
validly existing and in good standing under the laws of the State of New York,
and has all powers and all material governmental licenses, authorizations,
consents and approvals required to enter into, and perform its obligations
under, this Agreement.
(b) The execution, delivery and performance by the Collateral
Agent of this Agreement have been duly authorized by all necessary action on the
part of the Collateral Agent and do not and will not violate, contravene or
constitute a default under any provision of applicable law or regulation or of
the certificate of formation or by-laws of the Collateral Agent or of any
material agreement, judgment, injunction, order, decree or other instrument
binding upon the Collateral Agent.
(c) This Agreement constitutes a valid and binding agreement of
the Collateral Agent enforceable against the Collateral Agent in accordance with
its terms.
(d) The Collateral Agent has not and will not enter into any
agreement pursuant to which any Person other than Pledgor, the Collateral Agent,
Secured Party, or any securities intermediary through which any Collateral is
held (but, in the case of any such securities intermediary, only in respect of
Collateral held through it) has or will have Control with respect to any
Collateral.
(e) The Collateral Agent hereby agrees that all liens, pledges and
other security interests of any kind or nature held by it (other than liens,
pledges and security interests arising hereunder) in any of the Collateral
securing any obligation to the Collateral Agent (either in such capacity or in
any other capacity) (collectively, "OTHER LIENS") shall be subordinate and
junior to the liens, pledges and security interests in the Collateral arising
hereunder and that the Collateral Agent will take no action to enforce any Other
Liens so long as any obligation under the Stock Purchase Agreement or hereunder
(whether or not then due) should remain unsatisfied.
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SECTION 5. CERTAIN COVENANTS OF PLEDGOR. Pledgor agrees that, so long
as any of Pledgor's obligations under the Stock Purchase Agreement remain
outstanding:
(a) Pledgor shall ensure at all times that a Collateral Event of
Default shall not occur, and shall pledge additional Collateral in the manner
described in Sections 6(b) and 6(c) as necessary to cause such requirement to be
met.
(b) Pledgor shall, at the expense of Pledgor and in such manner
and form as Secured Party or the Collateral Agent may reasonably require, give,
execute, deliver, file and record any financing statement, notice, instrument,
document, agreement or other papers that may be necessary or desirable in order
to (i) create, preserve, perfect, substantiate or validate any security interest
granted pursuant hereto, (ii) create or maintain Control with respect to any
such security interests in any investment property (as defined in Section
9-102(a)(49) of the UCC) or (iii) enable the Collateral Agent to exercise and
enforce its rights and the rights of Secured Party hereunder with respect to
such security interest. To the extent permitted by applicable law, Pledgor
hereby authorizes the Collateral Agent to execute and file, in the name of
Pledgor or otherwise, UCC financing or continuation statements (which may be
carbon, photographic, photostatic or other reproductions of this Agreement or of
a financing statement relating to this Agreement) that the Collateral Agent in
its reasonable discretion may deem necessary or appropriate to further perfect,
or maintain the perfection of, the Security Interests.
(c) Pledgor shall warrant and defend Pledgor's title to the
Collateral, subject to the rights of the Collateral Agent and Secured Party,
against the claims and demands of all Persons. The Collateral Agent and Secured
Party (or, as they may agree, one of them) may elect, but without an obligation
to do so, to discharge any Lien of any third party on any of the Collateral.
(d) Pledgor agrees that Pledgor shall not change any of (A)
Pledgor's name, identity or limited liability company structure in any manner or
(B) Pledgor's Location, unless in any such case (x) Pledgor shall have given the
Collateral Agent not less than 30 days' prior notice thereof and (y) such change
shall not cause any of the Security Interests to become unperfected, cause
Secured Party to cease to have Control in respect of any of the Security
Interests in any Collateral consisting of investment property (as defined in
Section 9-102(a)(49) of the UCC) or subject any Collateral to any other Lien.
(e) Pledgor agrees that Pledgor shall not (i) create or permit to
exist any Lien (other than the Security Interests) or any Transfer Restriction
(other than the Existing Transfer Restrictions) upon or with respect to the
Collateral, (ii) sell or
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otherwise dispose of, or grant any option with respect to, any of the Collateral
or (iii) enter into or consent to any agreement pursuant to which any Person
other than Pledgor, the Collateral Agent, Secured Party and any securities
intermediary through which any of the Collateral is held (but, in the case of
any such securities intermediary, only in respect of Collateral held through it)
has or will have Control in respect of any Collateral.
(f) Without limiting the rights and obligations of the parties
under this Agreement, upon the consent of Pledgor (which consent need not be in
writing), the Collateral Agent, on behalf of Secured Party, may sell, lend,
pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose of,
or otherwise use in its business (collectively, "REHYPOTHECATE"), any
Collateral, free from any claim or right of any nature whatsoever of Pledgor,
including any equity or right of redemption by Pledgor; PROVIDED that the
Collateral Agent, on behalf of Secured Party, will replace any rehypothecated
Collateral (with the same Collateral or identical substitute Collateral) (A)
upon five Business Days' notice from Pledgor or (B) if not already replaced, on
the Maturity Date or any Termination Date. If at any time at which any shares of
Common Stock constituting Collateral have been rehypothecated pursuant to this
Section 5(f) there shall occur an event of a type that would, had the Collateral
Agent, on behalf of Secured Party, borrowed such shares of Common Stock from
Pledgor on terms customary for loans of equity securities (as determined by the
Calculation Agent), require either (i) an adjustment to the number of shares of
Common Stock or a change in the type of securities or other property that the
Collateral Agent, on behalf of Secured Party, would be required to deliver to
Pledgor to repay such stock loan or (ii) a payment or delivery by the Collateral
Agent, on behalf of Secured Party, to Pledgor in respect of dividends paid or
distributions made on such shares of Common Stock, then, in the case of clause
(i), such adjustment or change shall be applied to the number of shares of
Common Stock that the Collateral Agent, on behalf of Secured Party, is required
to replace upon notice from Pledgor in accordance with the proviso to the
immediately preceding sentence and, in the case of clause (ii), the Collateral
Agent, on behalf of Secured Party, shall make such payment or delivery to
Pledgor, whereupon the amount so paid or the assets so delivered shall become
Collateral hereunder. All determinations related to the immediately preceding
sentence shall be made by the Calculation Agent. The rehypothecation provided by
this Section 5(f) is intended to be an agreement that satisfies the requirements
of Section 1058 of the Internal Revenue Code of 1986, as amended, and the
regulations (including proposed regulations) promulgated thereunder, and the
parties hereto agree to treat this Section 5(f) as such an agreement for U.S.
federal income tax purposes.
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SECTION 6. ADMINISTRATION OF THE COLLATERAL AND VALUATION OF THE
SECURITIES. (a) The Collateral Agent shall determine on each Business Day
whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge hereunder additional Eligible Collateral at
any time. Concurrently with the delivery of any additional Eligible Collateral,
Pledgor shall deliver to the Collateral Agent a certificate of an Authorized
Officer of Pledgor substantially in the form of Exhibit A hereto and dated the
date of such delivery, (i) identifying the additional items of Eligible
Collateral being pledged and (ii) certifying that with respect to such items of
additional Eligible Collateral the representations and warranties contained in
Section 3(a), 3(b), 3(c) and 3(d) are true and correct with respect to such
Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and
agrees to take all actions required under Section 6(c) and any other actions
necessary to create for the benefit of the Collateral Agent a valid, first
priority, perfected security interest in, and a first lien upon, such additional
Eligible Collateral, as to which the Collateral Agent will have Control.
(c) Any delivery of any securities or security entitlements (each
as defined in Section 8-102 of the UCC) as Collateral to the Collateral Agent by
Pledgor shall be effected (i) in the case of Collateral consisting of
certificated securities registered in the name of Pledgor, by delivery of
certificates representing such securities to the Collateral Agent, accompanied
by any required transfer tax stamps, and in suitable form for transfer by
delivery or accompanied by duly executed instruments of transfer or assignment
in blank (including any related documentation required by the transfer agent for
such securities in connection with effecting or registering transfer), with
signatures appropriately guaranteed, all in form and substance reasonably
satisfactory to the Collateral Agent, (ii) in the case of Collateral consisting
of uncertificated securities registered in the name of Pledgor, by transmission
by Pledgor of an instruction to the issuer of such securities instructing such
issuer to register such securities in the name of the Collateral Agent or its
nominee, accompanied by any required transfer tax stamps, and the issuer's
compliance with such instructions or (iii) in the case of securities in respect
of which security entitlements are held by Pledgor through a securities
intermediary, by the crediting of such securities, accompanied by any required
transfer tax stamps, to a securities account of the Collateral Agent at such
securities intermediary or, at the option of the Collateral Agent, at another
securities intermediary satisfactory to the Collateral Agent. Upon delivery of
any such Pledged Item under this Agreement, the Collateral Agent shall examine
such Pledged Item and any certificates delivered pursuant to Section 6(b) or
otherwise pursuant to the terms hereof in connection therewith to determine that
they comply as to form with the requirements for Eligible Collateral.
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(d) If on any Business Day the Collateral Agent determines that a
Collateral Event of Default shall have occurred, the Collateral Agent shall
promptly notify Pledgor of such determination by telephone call to an Authorized
Officer of Pledgor followed by a written confirmation of such call.
(e) If on any Business Day the Collateral Agent determines that no
Event of Default or failure by Pledgor to meet any of Pledgor's obligations
under Sections 5 or 6 hereof has occurred and is continuing, Pledgor may obtain
the release from the Security Interests of any Collateral upon delivery to the
Collateral Agent of a written notice from an Authorized Officer of Pledgor
indicating the items of Collateral to be released so long as, after such
release, no Collateral Event of Default shall have occurred.
(f) On the Settlement Date for each Tranche, unless (i) Pledgor
shall have otherwise effected the deliveries required by Section 2.03(a) of the
Stock Purchase Agreement for such Tranche or shall have delivered the Cash
Settlement Amount for such Tranche to Secured Party in lieu of shares of Common
Stock in accordance with Section 2.04 of the Stock Purchase Agreement on the
Settlement Date for such Tranche or (ii) the shares of Common Stock then held by
the Collateral Agent hereunder are not Free Stock, the Collateral Agent shall
deliver (and Pledgor hereby irrevocably instructs the Collateral Agent to
deliver, in complete or partial, as the case may be, satisfaction of Pledgor's
obligations to deliver shares of Common Stock to an affiliate of Secured Party
designated by Secured Party on the Settlement Date for such Tranche pursuant to
the Stock Purchase Agreement) to an affiliate of Secured Party designated by
Secured Party shares of Common Stock that are Free Stock then held by the
Collateral Agent hereunder representing the number of shares of Common Stock
required to be delivered with respect to such Tranche under the Stock Purchase
Agreement on the Settlement Date for such Tranche. Upon any such delivery, such
affiliate of Secured Party shall hold such shares of Common Stock absolutely and
free from any claim or right whatsoever (including, without limitation, any
claim or right of Pledgor).
(g) The Collateral Agent may at any time or from time to time, in
its sole discretion, cause any or all of the Collateral that is registered in
the name of Pledgor or Pledgor's nominee to be transferred of record into the
name of the Collateral Agent or Collateral Agent's nominee. Pledgor shall
promptly give to the Collateral Agent copies of any notices or other
communications received by Pledgor with respect to Collateral that is
registered, or held through a securities intermediary, in the name of Pledgor or
Pledgor's nominee and the Collateral Agent shall promptly give to Pledgor copies
of notices and communications received by the Collateral Agent with respect to
Collateral that is registered, or held through a securities intermediary, in the
name of the Collateral Agent or its
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nominee; PROVIDED, however, that (i) the Collateral Agent shall only be required
to deliver such notices or other communications as have actually been received
by it in respect of the Collateral and (ii) the Collateral Agent shall only be
required to make such deliveries as quickly as reasonably practicable after its
receipt of such notices or other communications; PROVIDED FURTHER that proxies,
powers of attorney, consents, ratifications and waivers in respect of any of the
Collateral that is registered, or held through a securities intermediary, in the
name of the Collateral Agent or its nominee shall be subject to Section 7(c)
hereof and shall not be subject to this Section 6(g). Except as specifically set
forth herein, the Collateral Agent shall have no further obligation to
ascertain, or to notify Pledgor of, the occurrence of any events or actions
concerning Collateral that is registered, or held through a securities
intermediary, in the name of the Collateral Agent or its nominee and the
Collateral Agent shall not be deemed to assume any such further obligation as a
result of its establishment of any internal procedures with respect to any
securities in its possession.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to
the Collateral Agent:
(i) the amount of any taxes that the Collateral Agent or
Secured Party may have been required to pay by reason of the Security
Interests or to free any of the Collateral from any Lien thereon, and
(ii) the amount of any and all reasonable and documented
out-of- pocket expenses actually incurred, including the reasonable and
documented fees and disbursements of outside counsel and of any other
outside experts, that the Collateral Agent or Secured Party may incur
subsequent to the occurrence of an Event of Default in connection with
(A) the enforcement of this Agreement, including such expenses as are
incurred to preserve the value of the Collateral and the validity,
perfection, rank and value of the Security Interests, (B) the
collection, sale or other disposition of any of the Collateral, (C) the
exercise by the Collateral Agent of any of the rights conferred upon it
hereunder or (D) any Event of Default.
Any such amount not paid within ten business days of written
demand shall bear interest (computed on the basis of a year of 360 days
and payable for the actual number of days elapsed) at a rate per annum
equal to 2% plus the rate announced from time to time by JPMorgan Chase
Bank as its prime rate.
SECTION 7. INCOME AND VOTING RIGHTS IN COLLATERAL. (a) The Collateral
Agent shall have the right to receive and retain as Collateral hereunder all
12
proceeds of the Collateral and Pledgor shall take all such action as the
Collateral Agent shall deem in good faith as necessary or appropriate to give
effect to such right. All such proceeds including, without limitation, all
dividends and other payments and distributions that are received by Pledgor
shall be received in trust for the benefit of the Collateral Agent and Secured
Party and, if the Collateral Agent so directs, shall be segregated from other
funds of Pledgor and shall, forthwith upon demand by the Collateral Agent, be
paid over to the Collateral Agent as Collateral in the same form as received
(with any necessary endorsement).
(b) Notwithstanding Section 7(a), upon receipt of any
Extraordinary Dividend, the Collateral Agent shall deliver (and Pledgor hereby
irrevocably instructs the Collateral Agent to deliver in satisfaction of
Pledgor's obligation to pay or deliver the cash and/or other property
distributed in such Extraordinary Dividend to Secured Party pursuant to Section
6.01(a)(B) of the Stock Purchase Agreement) to Secured Party the cash and/or
other property distributed in such Extraordinary Dividend.
(c) Unless an Event of Default shall have occurred and be
continuing, Pledgor shall have the right, from time to time, to vote and to give
consents, ratifications and waivers with respect to the Collateral (other than
any Collateral that has been rehypothecated by the Collateral Agent), and the
Collateral Agent shall, upon receiving a written request from Pledgor
accompanied by a certificate of an Authorized Officer of Pledgor stating that no
Event of Default shall have occurred and be continuing, deliver to Pledgor or as
specified in such request such proxies, powers of attorney, consents,
ratifications and waivers in respect of any of the Collateral that is
registered, or held through a securities intermediary, in the name of the
Collateral Agent or its nominee as shall be specified in such request and shall
be in form and substance satisfactory to the Collateral Agent; PROVIDED,
however, that (i) the Collateral Agent shall only be required to deliver such
proxies, powers of attorneys, consents, ratifications and waivers as have
actually been received by it in respect of the Collateral and (ii) the
Collateral Agent shall only be required to make such deliveries as quickly as
reasonably practicable after its receipt of the relevant documents and the
written request.
(d) If an Event of Default shall have occurred and be continuing,
the Collateral Agent shall have the right, to the extent permitted by law, and
Pledgor shall take all such action as may be reasonably necessary or appropriate
to give effect to such right, to vote and to give consents, ratifications and
waivers, and to take any other action with respect to any or all of the
Collateral with the same force and effect as if the Collateral Agent were the
absolute and sole owner thereof.
13
SECTION 8. REMEDIES UPON EVENTS OF DEFAULT. (a) If any Event of Default
shall have occurred and be continuing, the Collateral Agent may exercise on
behalf of Secured Party all the rights of a secured party under the Uniform
Commercial Code (whether or not in effect in the jurisdiction where such rights
are exercised) and, in addition, without being required to give any notice,
except as herein provided or as may be required by mandatory provisions of law,
shall: (i) deliver all Collateral consisting of shares of Common Stock that are
Free Stock (but not in excess of the number thereof deliverable with respect to
all Tranches that have been accelerated under the Stock Purchase Agreement at
such time) to an affiliate of Secured Party designated by Secured Party on the
date of each Acceleration Amount Notice for such Tranches relating to such Event
of Default (the "DEFAULT SETTLEMENT DATE") in satisfaction of Pledgor's
obligations to deliver Free Stock for such Tranches under the Stock Purchase
Agreement, whereupon such affiliate shall hold such shares of Common Stock
absolutely and free from any claim or right of whatsoever kind, including any
equity or right of redemption of Pledgor that may be waived or any other right
or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby
specifically waives all rights of redemption, stay or appraisal that Pledgor has
or may have under any law now existing or hereafter adopted; and (ii) if such
delivery shall be insufficient to satisfy in full all of the obligations of
Pledgor with respect to all Tranches that have been accelerated under the Stock
Purchase Agreement or hereunder, sell all of the remaining Collateral, or such
lesser portion thereof as may be necessary to generate proceeds sufficient to
satisfy in full all of the obligations of Pledgor with respect to all Tranches
that have been accelerated under the Stock Purchase Agreement or hereunder, at
public or private sale or at any broker's board or on any securities exchange,
for cash, upon credit or for future delivery, and at such price or prices as the
Collateral Agent may deem satisfactory. Pledgor covenants and agrees that
Pledgor will execute and deliver such documents and take such other action as
the Collateral Agent deems reasonably necessary or advisable in order that any
such sale may be made in compliance with law. Upon any such sale the Collateral
Agent shall have the right to deliver, assign and transfer to the buyer thereof
the Collateral so sold. Each buyer at any such sale shall hold the Collateral so
sold absolutely and free from any claim or right of whatsoever kind, including
any equity or right of redemption of Pledgor that may be waived or any other
right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby
specifically waives all rights of redemption, stay or appraisal that Pledgor has
or may have under any law now existing or hereafter adopted. The notice (if any)
of such sale required by Section 9-611 of the UCC shall (1) in case of a public
sale, state the time and place fixed for such sale, (2) in case of sale at a
broker's board or on a securities exchange, state the board or exchange at which
such sale is to be made and the day on which the Collateral, or the portion
thereof so being sold, will first be offered for sale at such board or exchange,
and (3) in the case of a private sale, state the day after which such sale may
be
14
consummated. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as the Collateral Agent may
fix in the notice of such sale. At any such sale the Collateral may be sold in
one lot as an entirety or in separate parcels, as the Collateral Agent may
determine. The Collateral Agent shall not be obligated to make any such sale
pursuant to any such notice. The Collateral Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for the
sale, and such sale may be made 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
for future delivery, the Collateral so sold may be retained by the Collateral
Agent until the selling price is paid by the buyer thereof, but the Collateral
Agent shall not incur any liability in case of the failure of such buyer to take
up and pay for the Collateral so sold and, in case of any such failure, such
Collateral may again be sold upon like notice. The Collateral Agent, instead of
exercising the power of sale herein conferred upon it, may proceed by a suit or
suits at law or in equity to foreclose the Security Interests and sell the
Collateral, or any portion thereof, under a judgment or decree of a court or
courts of competent jurisdiction.
(b) Pledgor hereby irrevocably appoints the Collateral Agent
Pledgor's true and lawful attorney, with full power of substitution, in the name
of Pledgor, the Collateral Agent or Secured Party or otherwise, for the sole use
and benefit of the Collateral Agent and Secured Party, but at the expense of
Pledgor, to the extent permitted by law, to exercise, at any time and from time
to time while an Event of Default has occurred and is continuing, all or any of
the following powers with respect to all or any of the Collateral:
(i) to demand, xxx for, collect, receive and give
acquittance for any and all monies due or to become due upon or by
virtue thereof,
(ii) to settle, compromise, compound, prosecute or defend
any action or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or
with the same or the proceeds or avails thereof, as fully and
effectually as if the Collateral Agent were the absolute owner thereof
(including, without limitation, the giving of instructions and
entitlement orders in respect thereof), and
(iv) to extend the time of payment of any or all thereof
and to make any allowance and other adjustments with reference thereto;
15
PROVIDED that the Collateral Agent shall give Pledgor not less than three
Business Days' prior written notice of the time and place of any sale or other
intended disposition of any of the Collateral, except any Collateral that
threatens to decline speedily in value, including, without limitation, equity
securities, or is of a type customarily sold on a recognized market. The
Collateral Agent and Pledgor agree that such notice constitutes "reasonable
authenticated notification" within the meaning of Section 9-611 of the UCC.
(c) Upon any delivery or sale of all or any part of any Collateral
made either under the power of delivery or sale given hereunder or under
judgment or decree in any judicial proceedings for foreclosure or otherwise for
the enforcement of this Agreement, the Collateral Agent is hereby irrevocably
appointed the true and lawful attorney of Pledgor, in the name and stead of
Pledgor, to make all necessary deeds, bills of sale, instruments of assignment,
transfer or conveyance of the property, and all instructions and entitlement
orders in respect of the property thus delivered or sold. For that purpose the
Collateral Agent may execute all such documents, instruments, instructions and
entitlement orders. This power of attorney shall be deemed coupled with an
interest, and Pledgor hereby ratifies and confirms that which Pledgor's attorney
acting under such power, or such attorney's successors or agents, shall lawfully
do by virtue of this Agreement. If so requested by the Collateral Agent, by
Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor
shall further ratify and confirm any such delivery or sale by executing and
delivering to the Collateral Agent, to Secured Party or to such buyer or buyers
at the expense of Pledgor all proper deeds, bills of sale, instruments of
assignment, conveyance or transfer, releases, instructions and entitlement
orders as may be designated in any such request.
(d) In the case of an Event of Default, the Collateral Agent may
proceed to realize upon the security interest in the Collateral against any one
or more of the types of Collateral, at any time, as the Collateral Agent shall
determine in its sole discretion subject to the foregoing provisions of this
Section 8. The proceeds of any sale of, or other realization upon, or other
receipt from, any of the Collateral shall be applied by the Collateral Agent in
the following order of priorities:
FIRST, to the payment to the Collateral Agent of the expenses of such
sale or other realization, including reasonable compensation to the
Collateral Agent and its agents and counsel, and all expenses,
liabilities and advances incurred or made by the Collateral Agent in
connection therewith, including brokerage fees in connection with the
sale by the Collateral Agent of any Collateral;
16
SECOND, to the payment to Secured Party of an amount equal to sum of
the market values of the number of shares of Common Stock on the
respective Acceleration Date for each Tranche that has been accelerated
under the Stock Purchase Agreement equal, in the case of each such
Tranche, to (i) the number of shares of Common Stock required to be
delivered on the Default Settlement Date for such Tranche under Section
7.01 of the Stock Purchase Agreement without giving effect to the
proviso in such Section 7.01 minus (ii) the number of shares of Common
Stock delivered on the Default Settlement Date for such Tranche by the
Collateral Agent to Secured Party as described in Section 8(a); and
FINALLY, if all of the obligations of Pledgor hereunder and for each
Tranche under the Stock Purchase Agreement have been fully discharged
or sufficient funds have been set aside by the Collateral Agent at the
request of Pledgor for the discharge thereof, any remaining proceeds
shall be released to Pledgor.
(e) Pledgor recognizes that Secured Party may not choose to effect
a public sale of all or a part of the Collateral by reason of certain
prohibitions contained (x) in the Securities Act of 1933, as amended, as now or
hereafter in effect, or (y) in applicable Blue Sky or other state securities
laws, as now or hereafter in effect, and may 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. Pledgor agrees that private
sales so made may be at prices and other terms less favorable to the seller than
if such Collateral were sold at public sales, and that Secured Party has no
obligation to delay sale of any such Collateral for the period of time necessary
to permit the issuer of such Collateral, even if such issuer would agree, to
register such Collateral for public sale under such applicable securities laws.
The Pledgor agrees that private sales made under the foregoing circumstances
shall be deemed to have been made in a commercially reasonable manner.
SECTION 9. THE COLLATERAL AGENT. (a) Secured Party hereby irrevocably
appoints and authorizes the Collateral Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Collateral Agent by the terms hereof, together with all such powers as are
reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder are only
those expressly set forth in this Agreement.
17
(c) The Collateral Agent may consult with legal counsel,
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or not taken
by it in connection with this Agreement (1) with the consent or at the request
of Secured Party (2) in the absence of its own gross negligence or willful
misconduct. The Collateral Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement or other writing
(which may be a bank wire, telex or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost,
expense (including reasonable and documented counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from the
Collateral Agent's gross negligence or willful misconduct) that the Collateral
Agent may suffer or incur in connection with this Agreement or any action taken
or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof,
the Collateral Agent shall have no duty as to any Collateral in its possession
or control or in the possession or control of any agent, bailee, clearing
corporation or securities intermediary or any income thereon or as to the
preservation of rights against prior parties or any other rights pertaining
thereto. The Collateral Agent shall be deemed to have exercised reasonable care
in the custody and preservation of the Collateral if the Collateral is accorded
treatment substantially equal to that which it accords its own property, and
shall not be liable or responsible for any loss or damage to any of the
Collateral, or for any diminution in the value thereof, by reason of the act or
omission of any agent, bailee, clearing corporation or securities intermediary
selected by the Collateral Agent in good faith (or selected by an agent, bailee,
clearing corporation or securities intermediary so selected by the Collateral
Agent or by any agent, bailee, clearing corporation or securities intermediary
selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent
may be converted or merged, or with which it may be consolidated, or to which it
may sell or transfer its agency business and assets as a whole or substantially
as a whole, or any corporation or association resulting from any such
conversion, sale, merger, consolidation or transfer to which it is a party,
shall, subject to the prior written consent of Secured Party, be and become a
successor Collateral Agent hereunder and vested with all of the title to the
Collateral and all of the powers, discretions, immunities, privileges and other
matters as was its predecessor
18
without, except as provided above, the execution or filing of any instrument or
any further act, deed or conveyance on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 10. MISCELLANEOUS. (a) Whenever any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party. All the covenants and agreements herein contained by or
on behalf of Pledgor and the Collateral Agent shall bind, and inure to the
benefit of, their respective successors and assigns whether so expressed or not,
and shall be enforceable by and inure to the benefit of Secured Party and its
successors and assigns.
(b) To the extent permitted by law, the unenforceability or
invalidity of any provision or provisions of this Agreement shall not render any
other provision or provisions herein contained unenforceable or invalid.
(c) Any provision of this Agreement may be amended or waived if,
and only if, such amendment or waiver is in writing and signed, in the case of
an amendment, by Pledgor, the Collateral Agent and Secured Party or, in the case
of a waiver, by the party against whom the waiver is to be effective. No failure
or delay by any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
(d) All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard forms of telecommunication. Notices to Pledgor shall be directed to
Pledgor x/x Xxxxxxx, X.X.X., Xxxxx 000, 0000 Xxxxxxxxxxxx Xxx., X.X.,
Xxxxxxxxxx, XX 00000-0000, Telephone No. 000-000-0000, Telecopy No. 202-
467-0088, Attention: Xxxx Xxxxxxx; notices to the Collateral Agent shall be
directed to it at JPMorgan Chase Bank, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx, 00000, Attention: EDG Corporate Marketing (Xxxx Xxxx), Telephone No.
000-000-0000, Telecopy No. 000-000-0000 with a copy to JPMorgan Chase Bank, 000
Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxx, XX 00000-0000, Attention: Collateral Ops, 3 Ops
2, Telephone No. 000-000-0000, Telecopy No. 302-634- 3208; notices to Secured
Party shall be directed to it at JPMorgan Chase Bank, 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: EDG Corporate Marketing (Xxxx
Xxxx), Telephone No. 000-000-0000, Telecopy No. 000-000-0000 with a copy to
JPMorgan Chase Bank, 000 Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxx, XX 00000-0000,
Attention: Collateral Ops, 3 Ops 2, Telephone No. 000-000-0000, Telecopy No.
000-000-0000.
19
(e) This Agreement shall in all respects be construed in
accordance with and governed by the laws of the State of New York (without
reference to choice of law doctrine); provided that as to Pledged Items located
in any jurisdiction other than the State of New York, the Collateral Agent on
behalf of Secured Party shall have, in addition to any rights under the laws of
the State of New York, all of the rights to which a secured party is entitled
under the laws of such other jurisdiction. The parties hereto hereby agree that
the Collateral Agent's jurisdiction, within the meaning of Section 8-110(e) of
the UCC, insofar as it acts as a securities intermediary hereunder or in respect
hereof, is the State of New York.
(f) EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN ANY SUIT OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(h) This Agreement may be executed, acknowledged and delivered in
any number of counterparts, and all such counterparts taken together shall be
deemed to constitute one and the same agreement.
SECTION 11. SET-OFF. The parties hereto acknowledge and agree that each
of them may elect to set-off any or all of its obligations to the other party
under any agreement to which the parties hereto are parties against any or all
of its rights to obtain performance from such other party under any other
agreement to which such parties are party.
SECTION 12. TERMINATION OF PLEDGE AGREEMENT. This Agreement and the
rights hereby granted by Pledgor in the Collateral shall cease, terminate and be
void upon fulfillment of all of the obligations of Pledgor for each Tranche
under the Stock Purchase Agreement and hereunder. Any Collateral remaining at
the time of such termination shall be fully released and discharged from the
Security Interests and delivered to Pledgor by the Collateral Agent and the
Secured Party and Collateral Agent shall execute all reasonably necessary
documents to evidence such release and discharge, all at the request and expense
of Pledgor.
SECTION 13. ASSIGNMENT. Neither Secured Party nor Pledgor may assign
its rights or delegate its obligations under this Agreement, except with the
prior
20
written consent of the other parties hereto, and any purported assignment or
delegation without such prior written consent shall be void and of no effect;
PROVIDED that, notwithstanding any other provision of this Agreement or the
Stock Purchase Agreement to the contrary requiring Secured Party to purchase,
sell, receive or deliver any shares of Common Stock or other securities to or
from Pledgor, Secured Party may designate any of its affiliates that is a
"United States person" for U.S. federal income tax purposes to purchase, sell,
receive or deliver such shares or other securities or otherwise to perform
Secured Party's obligations in respect of the transactions contemplated
hereunder and for each Tranche under the Stock Purchase Agreement and any such
designee may assume such obligations; PROVIDED that Secured Party shall not be
discharged of its obligations to Pledgor hereunder and under the Stock Purchase
Agreement except to the extent so performed by Secured Party or such affiliate
designated by Secured Party.
21
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date and year first above written.
PLEDGOR:
PERSEUS CAPITAL, LLC
By: PERSEUS MANAGEMENT, L.L.C.,
as its Manager
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Secretary and Treasurer
COLLATERAL AGENT:
JPMORGAN CHASE BANK, as Collateral
Agent
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: VP and Assistant General Counsel
SECURED PARTY:
JPMORGAN CHASE BANK
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: VP and Assistant General Counsel
EXHIBIT A
CERTIFICATE FOR ADDITIONAL COLLATERAL
-------------------------------------
The undersigned, a __________________ of Perseus Capital, LLC
("PLEDGOR"), hereby certifies, pursuant to Section 6(b) of the Pledge Agreement,
dated as of March 5, 2002, among Pledgor, JPMorgan Chase Bank, as Collateral
Agent, and JPMorgan Chase Bank, as Secured Party (the "PLEDGE AGREEMENT"; terms
defined in the Pledge Agreement being used herein as defined therein), that:
1. Pledgor is delivering, or causing to be delivered in
accordance with Section 6(c) of the Pledge Agreement, the following securities
(or security entitlements in respect thereof) to the Collateral Agent to be held
by the Collateral Agent as additional Collateral (the "ADDITIONAL COLLATERAL"):
2. Pledgor hereby represents and warrants to the Collateral Agent
that the Additional Collateral is Eligible Collateral and that the
representations and warranties contained in Sections 3(a), 3(b), 3(c) and 3(d)
of the Pledge Agreement are true and correct with respect to the Additional
Collateral on and as of the date hereof.
This Certificate may be relied upon by Secured Party as fully and to
the same extent as if this Certificate had been specifically addressed to
Secured Party.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
___ day of __________, ____.
By:
---------------------------------------
Name:
Title:
A-1
