Exhibit 10.28
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT ("Pledge Agreement") is made and entered into this
April 30, 2004 by and between PHC, Inc., a Massachusetts corporation ("PHC" or
the "Pledgor"), Louis Kirby ("Kirby"), Carol Colombo ("Colombo") and Anthony
Bonacci ("Bonacci" and together with Kirby and Colombo, the "Pledgees").
RECITALS
A. Pledgor has delivered to Pledgees: (i) a Secured Promissory Note of even
date herewith in the original principal amount of $1,000,000 ("Note A"),
(ii) a Secured Promissory Note of even date herewith in the original
principal amount of $500,000 ("Note B") and, (iii) a Secured Promissory
Note of even date herewith in the original principal amount of $1,000,000
("Note C"). Note A, Note B and Note C are sometimes referred to together as
the "Notes." The Notes were delivered pursuant to a Membership Purchase
Agreement dated of even date herewith (the "Purchase Agreement") between
Pledgor, Pivotal Research Centers, LLC ("Pivotal") and the Pledgees in
their capacity as members of Pivotal, pursuant to which Pledgor acquired
all of the membership interests of Pivotal. All capitalized terms not
defined herein shall have the meaning set forth in the Purchase Agreement.
In the event of a conflict between a defined term in this Agreement and a
defined term in the Purchase Agreement, the meaning set forth in the
Purchase Agreement shall govern.
B. In order to secure the payment and performance of all of Pledgor's
Obligations (as defined below), Pledgor has agreed to pledge the Collateral
(as defined below) to Pledgees, and Pledgor and Pivotal have agreed to
grant to Pledgees a security interest in the Assets of the Pivotal Business
as more particularly set forth in that certain Security Agreement of even
date herewith between Pledgor and Pledgees (the "Security Agreement").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the Pledgor and the Pledgees agree as follows:
SECTION 1. Pledge. To secure the prompt payment and performance of
Pledgor's obligations under the Obligations (as defined below), (i) Pledgor
hereby pledges and grants a security interest to Pledgees in the all of the
Collateral (as defined below), and (ii) pursuant to an escrow agreement
satisfactory to Pledgor, Pledgor shall deposit with a third party independent
escrow agent that is a nationally recognized financial institution (the "Escrow
Agent") on behalf of Pledgees the Equity Securities evidencing Pledgor's
ownership interest in Pivotal and deliver to Escrow Agent on behalf of Pledgees
certificates or instruments therefore, accompanied by undated powers duly
executed in blank by Pledgor and such other instruments of transfer as are
reasonably acceptable to Pledgees. Any and all fees, costs, charges, and
expenses whatsoever charged by Escrow Agent in connection with the establishment
and regular maintenance of the Escrow with the Escrow Agent shall be paid by
Pledgees. This Pledge Agreement shall remain in effect until all amounts payable
under the Notes have been paid in full. Upon the satisfaction of the
Obligations, Pledgees will release their security interest created hereunder and
under the Security Agreement.
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(a) Definitions. The term "Interest" shall mean all the Membership
Interests at any time owned by Pledgor, together with all
distributions, cash, instruments and other property from time to time
received, receivable or otherwise distributed in exchange for any or
all of the Interests. All Interest at any time pledged or required to
be pledged hereunder together with the Cash Collateral (as defined in
Section 6(a)(ii) and Non-cash Collateral (as defined in Section
6(a)(iii) and all rights derived from any of the foregoing and all
proceeds thereof is hereinafter called the "Collateral."
(b) Subsequently Acquired Securities. If either Pledgor or any affiliate
of Pledgor shall acquire (by purchase, stock dividend or otherwise)
any additional Equity Securities (as defined in the Purchase
Agreement) representing an interest in Pivotal at any time or from
time to time after the date hereof (including without limitation all
additional Membership Interests in Pivotal from time to time acquired
by Pledgor), Pledgor will promptly thereafter pledge to Pledgees and
deposit such Equity Securities (or certificates or instruments
representing such Equity Securities) as security with Escrow Agent on
behalf of Pledgees and deliver to Escrow Agent certificates or
instruments therefore, accompanied by undated powers duly executed in
blank by such Pledgor and such other instruments of transfer as are
reasonably acceptable to Pledgees, and will promptly thereafter
deliver to the Pledgees a certificate executed by a principal
executive officer of Pledgor describing such Equity Securities and
certifying that the same has been duly pledged to Escrow Agent on
behalf of Pledgees hereunder.
(c) Uncertificated Securities. Notwithstanding anything to the contrary
contained herein, if any Equity Securities (whether now owned or
hereafter acquired) are uncertificated securities, the Pledgor shall
promptly notify the Pledgees thereof, and shall promptly take all
actions required to perfect the security interest under applicable law
(including in any event the Arizona Uniform Commercial Code, if
applicable). Pledgor further agrees to take such actions reasonably
necessary to effect the foregoing and to permit the Pledgees to
exercise any of their rights and remedies hereunder.
SECTION 2. Security for Obligations. This Agreement is made to secure the
timely payment and performance of all obligations of Pledgor now or hereafter
existing under the Notes, this Agreement, and the Security Agreement (together,
the "Covered Transaction Documents") in each case including, without limitation,
interest accruing after maturity of any obligation and after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding relating to Pledgor or to the obligor under any of the Notes,
whether or not a claim for post filing or post-petition interest is allowed in
such proceeding, and all other obligations of Pledgor to any of the Pledgees,
whether direct, indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise out of or in connection with the
Covered Transaction Documents, (in each case as the same may be amended from
time to time), whether on account of principal, interest, reimbursement
obligations, fees, costs, expenses (including without limitation all fees and
disbursements of counsel related to enforcing Pledgees' rights) or otherwise
(collectively, the "Obligations").
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SECTION 3. Event of Default. Any of the following shall constitute an
"Event of Default" under this Agreement: (i) any breach or failure of Pledgor to
perform any material provision of this Agreement and the failure of Pledgor to
cure such breach or failure within the applicable "Cure Period", if any; (ii)
any event or occurrence that constitutes an event of default under any other
Covered Transaction Document. For purposes of determining an Event of Default
based on a failure to perform under this Agreement, (i) there shall be no "Cure
Period" for any breach or failure to perform that is based in whole or in part
upon a failure to pay monies when due, and (ii) the term "Cure Period" shall
mean a period of time that commences upon the giving of written notice by
Pledgees that a breach or failure to perform has occurred and expires ten (10)
Business Days from the date such notice is given or deemed given. An Event of
Default hereunder based on any Covered Transaction Document other than this
Agreement shall occur after the expiration of the applicable cure period, if
any, set forth in such other Covered Transaction Document, and no additional
time to cure under this Agreement shall be given or is intended to be given
hereby. In the event of conflicting cure periods in Covered Transaction
Documents, the shortest cure period shall control.
SECTION 4. Representations and Warranties. Pledgor represents and warrants
as follows as of the Effective Date:
(a) Effect of Pledge. The pledge of the Collateral pursuant to this
Agreement creates a valid and enforceable first priority security
interest in the Collateral, securing the payment and performance of
the Obligations subject and subordinate only to the Acquisition
Financing and Line of Credit.
(b) Liens. As of the Effective Date: (i) Pledgor is the legal and
beneficial owner of their respective Collateral free and clear of any
lien, security interest, option or other charge or encumbrance except
for the security interest created by this Agreement; (ii) the
Membership Interests are titled in the name of Pledgor; and (iii) no
prior or superior effective financing statement or other similar
instrument is on file in any recording office covering the Collateral,
except such as may have been filed in favor of Pledgees relating to
this Agreement, or except as may be required in connection with the
Acquisition Financing or Line of Credit. Pledgor shall have no
liability for the failure of the foregoing representation to be true
if such failure is caused by (i) the failure of Sellers (as defined in
the Purchase Agreement) to have properly transferred the Membership
Interests to PHC under the Purchase Agreement or (b) the breach of any
representation or warranty of Sellers under the Purchase Agreement.
(c) Consents. No authorization, approval, or other action by, and no
notice to or filing with, PHC, any member, manager, shareholder
or director of PHC, or any governmental authority or regulatory
body (other than such as may be filedin favor of Pledgee relating
to this Agreement), is required either (i) for the pledge by
Pledgors of any or all of the Collateral pursuant to this
Agreement or for the execution, delivery or performance of this
Agreement by Pledgor, or (ii) for the exercise by Pledgees of the
voting or other rights provided for in this Agreement or the
remedies in respect of any or all of the Collateral pursuant to
this Agreement (except as may be required in connection with
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disposition of the Collateral by laws affecting the offering and
sale of securities generally). Pledgor shall have no liability
for the failure of the foregoing representation to be true if
such failure is caused by (i) the failure of Sellers (as defined
in the Purchase Agreement) to have properly transferred the
Membership Interests under the Purchase Agreement or (b) the
breach of any representation or warranty of Sellers under the
Purchase Agreement.
SECTION 5. Affirmative Covenants. Pledgor agrees that at all times prior to
the satisfaction in full of the Obligations, Pledgor shall comply with the
following affirmative covenants, unless compliance is waived in writing by
Pledgee:
(a) Taxes. Pledgor will pay before delinquent and before penalties
accrue all property taxes, income taxes, assessments and
governmental and other charges levied and imposed by the United
States of America or by any state, county or municipality or
other taxing body prior to the filing or recordation of a lien
against the Collateral based on the failure to pay any such
items.
(b) Further Assurances. Pledgor agrees that at any time and from time
to time, at the expense of Pledgor, Pledgor will promptly execute
and deliver all further instruments and documents, and take all
further action, that may be necessary, or that Pledgees may
reasonably request, in order to perfect and protect any security
interest granted or purported to be granted by this Agreement or
to enable Pledgees to exercise and enforce its rights and
remedies under this Agreement with respect to any Collateral.
Without limiting the generality of the foregoing, Pledgor will
execute and file such financing or continuation statements, or
amendments thereto and such other instruments or notices, or take
such further action, as may be necessary or as Pledgees may
request, in order to perfect and preserve the security interests
granted or purported to be granted hereby.
SECTION 6. Voting Rights; Dividends.
(a) Prior to Default. As long as no Event of Default has occurred:
(i) Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Collateral or any
part thereof for any purpose not inconsistent with or
violative of the terms of this Agreement or the other
Obligations.
(ii) Pledgor shall be entitled to retain any and all dividends,
interest and other payments and distributions paid by the
Companies in respect of the Collateral (the "Cash
Collateral").
(iii)Any and all distributions paid or payable other than in
cash in respect of, and instruments and other property
received, receivable or otherwise distributed by PHC in
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respect of, or in exchange for, any Collateral ("Non-cash
Collateral") shall be additional Collateral subject to the
terms of this Agreement and, pursuant to Section 1, shall be
promptly delivered to Escrow Agent to hold as Collateral for
the benefit of Pledgees. Any Non-cash Collateral shall, if
received by Pledgor, be received in trust as agent of
Pledgees, be segregated from the other property or funds of
Pledgor, and be promptly delivered to Escrow Agent on behalf
of Pledgees as Collateral in the same form as so received
(with any necessary endorsement).
(b) After Default. Upon the occurrence of an Event of Default,
(i) All rights of Pledgor to exercise the voting and other
consensual rights that it would otherwise be entitled to
exercise pursuant to Section 6(a)(i) shall cease, and all
such rights shall automatically become vested in Pledgees
who shall then have the sole right to exercise such voting
and other consensual rights.
(ii) All rights of Pledgor to receive any Cash Collateral shall
cease and all such rights shall automatically become vested
in Pledgees who shall have the sole right to receive such
Cash Collateral.
(iii)All rights of Pledgor to receive any Non-cash Collateral
shall cease and all such rights shall automatically become
vested in Pledgees who shall have the sole right to receive
such Non-cash Collateral.
SECTION 7. Transfers and Other Liens; Additional Interests. Except as
provided in Section 3.11 of the Purchase Agreement, Pledgor shall not (a) sell
or otherwise dispose of, or grant any option with respect to, any of the
Collateral without the written consent of Pledgees, which consent may be
withheld in Pledgees' sole and absolute discretion; (b) create or permit to
exist any superior lien, security interest, or other charge or encumbrance upon
or with respect to any of the Collateral, except for the security interest under
this Agreement; or (c) re-title any of all of the Collateral other than in the
name of Pledgor without the consent of Pledgees, which consent may be withheld
in Pledgees' sole and absolute discretion other than in accordance with a
transfer or assignment compliant with the terms of Section 3.11 of the Purchase
Agreement.
SECTION 7A. Appointment Attorney-in-Fact. Pledgor appoints Louis Kirby, in
his capacity as a Pledgee, as Pledgor's attorney-in-fact with full authority in
the place and stead of Pledgor and in the name of Pledgor or otherwise, from
time to time, to take any action and to execute any instrument in accordance
with the terms hereof to receive, endorse and collect all instruments made
payable to Pledgor representing any dividend, interest payment or other
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same, subject only to the terms of Section 6(a)(ii). The
attorney-in-fact appointment set forth in this Section 7A shall only become
effective immediately upon the occurrence of an Event of Default.
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SECTION 8. Pledgees May Perform. If any Event of Default occurs, Pledgees
may, with prior written notice to Pledgor, cure the Event of Default on behalf
of Pledgor by providing written notice to Pledgor of Pledgees' intent to cure,
provided that Pledgees shall have no responsibility or liability for continuing
such cure efforts (which efforts the Pledgees may terminate in whole or in part
at any time, provided Pledgees provide to Pledgor written notice of their
termination or intention to terminate such efforts to cure and use reasonable
efforts to describe generally Pledgees' efforts to cure, if any, up to and
including the date Pledgees terminate such efforts) or for the failure of the
Event of Default to be cured. The reasonable expenses of Pledgees incurred in
connection therewith shall become Obligations and subject to repayment by
Pledgors in accordance with the provisions of Section 12.
SECTION 9. Reasonable Care. If Pledgees receive Collateral, Pledgees shall
be deemed to have exercised reasonable care in the custody and preservation of
the Collateral in its possession if the Collateral is accorded by Pledgees
treatment substantially equal to that which Pledgees accords their own property,
it being understood that Pledgees shall have no responsibility for (i)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether or not
Pledgees have or are deemed to have knowledge of such matters, or (ii) taking
any necessary steps to preserve rights against any parties with respect to any
Collateral.
SECTION 10. Remedies upon Default. If any Event of Default has occurred and
is continuing, and in addition to such other remedies, rights and consequences
set forth herein (including without limitation as described in Section 6(b):
(a) Pledgees may exercise, in respect of the Collateral, all the
rights and remedies of a secured party under the Uniform
Commercial Code (the "Code") in effect in the State of Arizona at
that time, in addition to other rights and remedies provided for
herein or otherwise available to Pledgees. Without in any way
limiting the foregoing, Pledgees shall have the right, at any
time in their sole and absolute discretion, to: (i) receive from
the Escrow Agent and transfer to, or register in the name of,
Pledgees or any of its nominees any or all of the Collateral; or
(ii) take possession of and sell the Collateral or any part
thereof in one or more lots at one or more public or private
sales, at any exchange, broker's board or at any of Pledgees'
offices or elsewhere, for cash, on credit or for future delivery,
and at such price or prices and upon such other terms as are
commercially reasonable. Pledgor agrees that at least ten (10)
Business Days notice to Pledgor, by registered mail to the
address stated herein, of the time and place of any sale shall
constitute reasonable notification. With respect to any public or
private sale: (a) Pledgees are hereby relieved from any liability
or claim for inadequacy of price; (b) at any sale (public or
private), the Pledgees, or any of them, may themselves purchase
the whole or any part of the Collateral or interest therein being
sold; and (c) if any sale be made on credit for future delivery,
the Collateral so sold may be retained by Pledgees until the
selling price is paid by the purchaser without any liability on
the part of the Pledgees in the event of failure of the purchaser
to take up and pay for the Collateral sold and with the right of
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the Pledgees to sell the Collateral again in the event of a
default by the purchaser. Pledgees shall not be obligated to make
any sale of Collateral regardless of notice of sale having been
given. Pledgees may adjourn any sale from time to time by
announcement of the time and place fixed therefor, and such sale
may, upon giving the same notice to Pledgor as required above, be
made at the time and place to which it was so adjourned, or
Pledgee shall be entitled to give notice of its intent to
terminate such sale.
(b) All cash proceeds received by Pledgees in respect of any sale of,
collection from, or other realization upon all or any part of the
Collateral may, in the discretion of Pledgees, be held by
Pledgees as collateral for, and/or then or at any time thereafter
be applied (after payment of any amounts payable to Pledgees
pursuant to Section 12) in whole or in part against, all or any
part of the Obligations in such order as Pledgees shall elect.
Any surplus of such cash or cash proceeds held by Pledgees and
remaining after payment in full of all the Obligations shall be
paid over to Pledgor or to whomsoever may be lawfully entitled to
receive such surplus. In the event that the proceeds from any
such sale or other disposition are insufficient to satisfy the
obligations, Pledgees retain and may pursue all deficiencies
directly against Pledgor.
(c) Upon written request of any Pledgee to the Escrow Agent, and
delivery of a copy of such written request to the Pledgor in
accordance with Section 15 hereof, representing that an Event of
Default has occurred and is continuing, Escrow Agent shall
deliver to such Pledgees all Collateral held by Escrow Agent.
Escrow Agent shall be entitled to rely on this Agreement and on
the instructions of Pledgees as its instructions.
SECTION 11. Cooperation With Sale. If Pledgees elect to exercise Pledgees'
right to sell all or any of the Collateral pursuant to Section 10, Pledgor
agrees that, upon request of Pledgees, Pledgor will, at its own expense do or
cause to be done all such other acts and things as may be reasonably necessary
to make such sale of the Collateral or any part thereof valid and binding and in
compliance with applicable Law.
SECTION 12. Expenses. Upon any dispute under this Agreement, the prevailing
party shall be entitled to collect from the other all reasonable expenses,
including the reasonable fees and expenses of the prevailing party's in-house or
outside counsel and of any experts and agents, which the prevailing party may
incur in connection with (i) the exercise of any rights under this Agreement by
reason of the actions of the non-prevailing party, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, or
recovery of, the Collateral (iii) the exercise or enforcement of any of the
rights of the prevailing party, (iv) operation of the Business pending the sale
or other transfer of the Collateral, or (v) the failure by the non-prevailing
party to perform or observe any of the provisions hereof. Upon the occurrence
and continuance of an Event of Default as to which there is no reasonable
dispute, Pledgor agrees to be responsible for such reasonable fees and expenses
of Pledgor as described above incurred from and after such Event of Default.
Amounts for which any party is responsible under this Section 12 shall be
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payable within ten (10) Business Days after demand. Interest thereon shall
accrue at the rate of 15% per annum.
SECTION 13. Security Interest Absolute. Subject to the Acquisition
Financing and the Line of Credit, all rights of Pledgees and security interests
under this Agreement, and all obligations of Pledgor under this Agreement, shall
be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of any of the Notes (other
than as a result of full payment and satisfaction thereof) or any
other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the
Notes or this Agreement;
(iii)any exchange, release or non-perfection of any other collateral
for all or any of the Obligations;
(iv) the discharge in bankruptcy of either of Pledgor's obligations
under any of the Notes.
SECTION 14. Amendments, Etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure by Pledgor from the terms of this
Agreement, shall be effective unless it is in writing and signed by Pledgees,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. For purposes of this Section, the
Pledgor shall be entitled to rely on the signature of Louis Kirby as agent for
all of the Pledgees.
SECTION 15. Notices. Any and all notices required by this Agreement shall
be made in accordance with Section 10.6 of the Purchase Agreement.
SECTION 16. Continuing Security Interest; Transfer of Notes. This Agreement
shall create a continuing security interest in the Collateral and shall remain
in full force and effect until all of the payment obligations under each and all
of the Notes, the Security Agreement and this Agreement have been fully
satisfied. This Agreement shall be binding upon Pledgor, and its successors and
assigns, and inure to the benefit of Pledgee and its successors, transferees and
assigns. Without limiting the generality of the preceding sentence, Pledgees may
assign or otherwise transfer all or a portion of their interest in this
Agreement to a transferee of one or more of the Notes, in which case such
transferee shall automatically become vested with all of the benefits of this
Agreement.
SECTION 17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws, without giving effect to the law of
conflicts, of the State of Arizona, except for conflict of Law principles in the
event of a conflict between the defined terms of this Agreement and those of the
Purchase Agreement, in which case Delaware Law shall govern the interpretation
of the defined term. Each of the parties is and shall remain subject to the in
personam, in rem and subject matter jurisdiction of the Courts of the State of
Arizona for all purposes pertaining to this instrument and all documents and
instruments executed in connection herewith, securing the same, or in any way
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pertaining hereto. The parties specifically acknowledge that, notwithstanding
any provision of the Purchase Agreement or any other agreement, a claim or
action to enforce this Agreement is not required to be brought in arbitration,
and may be prosecuted in a court of competent jurisdiction as described above.
SECTION 18. No Waiver; Cumulative Remedies. The Pledgees shall not by any
act (except a written instrument pursuant to Section 14 hereof) be deemed to
have waived any right or remedy hereunder or to have acquiesced in any Default
or Event of Default or in any breach of any of the terms and conditions hereof.
No failure to exercise, or delay in exercising any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by Pledgees of any right or
remedy hereunder on any one occasion shall not be a bar to any right or remedy
which the Pledgees would otherwise have on any future occasion. The rights and
remedies herein and in the other Covered Transaction Documents are cumulative,
may be exercised singularly or concurrently and are not exclusive of any other
rights or remedies provided by law.
SECTION 19. Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts and by facsimile signature, each of which when
so executed and delivered (including by facsimile) shall be an original, but all
such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
hereof.
Pledgees Pledgor:
PHC, Inc.
/s/ Louis C. Kirby By: /s/ Bruce A. Shear
_______________________________ __________________________
Louis C. Kirby Bruce Shear, President
/s/ Carol A. Colombo
_______________________________
Carol A. Colombo
/s/ Anthony A. Bonacci
_______________________________
Anthony A. Bonacci
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