EXECUTION COPY
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this 'Pledge Agreement') is made and entered into as
of January 6, 1994 by THE COOPER COMPANIES, INC., a Delaware corporation, having
its principal office at One Bridge Plaza, 6th Floor, Fort Lee, New Jersey 07024
(the 'Pledgor'), in favor of IBJ SCHRODER BANK & TRUST COMPANY, having an office
at One State Street, New York, New York 10004, as trustee (the 'Trustee') for
the holders (the 'Holders') of the Notes (as defined herein).
WITNESSETH:
WHEREAS, the Pledgor and the Trustee have entered into that certain
indenture dated as of January 6, 1994 (as amended, restated, supplemented or
otherwise modified from time to time, the 'Indenture'), pursuant to which the
Pledgor is issuing on the date hereof its 10% Senior Subordinated Secured Notes
due 2003 (the 'Notes'). Capitalized terms used herein or in the Schedules hereto
and not otherwise defined herein or in such Schedules shall have the meanings
given to such terms in the Indenture;
WHEREAS, the Pledgor is the legal and beneficial owner of (i) the
outstanding shares of capital stock (the 'Pledged Shares') set forth on Schedule
I hereto of the Subsidiaries listed on Schedule I hereto (the 'Issuers') and
(ii) those certain intercompany promissory notes set forth on Schedule II hereto
issued by the Issuers in favor of the Pledgor to evidence monies loaned or
advanced by the Pledgor to the Issuers (collectively, the 'Pledged
Indebtedness'); and
WHEREAS, to secure its obligations under the Indenture and the Notes
(together with its obligations under this Pledge Agreement, the 'Obligations'),
the Pledgor has agreed to (i) pledge to the Trustee for its benefit and the
ratable benefit of the Holders, and grant to the Trustee for its benefit and the
ratable benefit of the Holders, a security interest in the Collateral (as
defined herein) and (ii) execute and deliver this Pledge Agreement in order to
secure the payment and performance by the Pledgor of all such Obligations.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, and in order to induce
the Holders to accept the Notes, among other consideration, in exchange for the
Old Debentures, the Pledgor hereby agrees with the Trustee for its benefit and
the ratable benefit of the Holders as follows:
SECTION 1. Pledge. The Pledgor hereby pledges to the Trustee for its
benefit and for the ratable benefit of the Holders, and grants to the
Trustee for its benefit and the ratable benefit of the Holders, a
continuing first priority security interest in all of its right, title and
interest in and to the following (the 'Collateral'):
(a) the Pledged Shares and the certificates representing the
Pledged Shares and, other than proceeds from the sale or disposition
thereof (including the pledge thereof) pursuant to Section 11.03 of the
Indenture, the proceeds received from a sale or disposition of the
Pledged Shares (including the pledge thereof), subject to Section 9-306
of the Uniform Commercial Code (the 'UCC'); and
(b) all additional shares of, and all securities convertible into,
and warrants, options or other rights to purchase, stock of, or equity
interests in, either Issuer from time to time acquired by the Pledgor in
any manner (so long as the securities of such Issuer have not previously
been released from the security interest created by this Pledge
Agreement), and the certificates representing such additional shares
(any such additional shares shall constitute part of the Pledged Shares
under and as defined in this Pledge Agreement) and, other than proceeds
from the sale or disposition thereof (including the pledge thereof)
pursuant to Section 11.03 of the Indenture, the proceeds received from a
sale or disposition of the additional Pledged Shares (including the
pledge thereof), subject to Section 9-306 of the UCC; and
(c) the Pledged Indebtedness and the instruments or other documents
representing the Pledged Indebtedness and, other than proceeds from the
sale or disposition thereof (including the pledge thereof) pursuant to
Section 11.03 of the Indenture, the proceeds received from a sale or
disposition of the Pledged Indebtedness (including the pledge thereof),
subject to Section 9-306 of the UCC; and
(d) all additional promissory notes or other intercompany
indebtedness (whether or not evidenced by a written instrument) made by
either Issuer from time to time and held by the Pledgor in any manner
(so long as the securities of such Issuer have not previously been
released from the security interest created by this Pledge Agreement)
(any such additional promissory notes and indebtedness shall constitute
part of the Pledged Indebtedness under and as defined in this Agreement)
and, other than proceeds from the sale or disposition thereof (including
the pledge thereof) pursuant to Section 11.03 of the Indenture, the
proceeds received from a sale or disposition of the additional Pledged
Indebtedness (including the pledge thereof), subject to Section 9-306 of
the UCC.
SECTION 2. Security for Obligations. This Pledge Agreement secures the
prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of all Obligations.
SECTION 3. Delivery of Collateral. All certificates or instruments
representing or evidencing the Collateral shall be delivered to and held by
or on behalf of the Trustee pursuant hereto and shall be in suitable form
for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Trustee.
SECTION 4. Representations and Warranties. The Pledgor hereby
represents and warrants that, except as set forth in Schedule III hereto:
(a) The execution, delivery and performance by the Pledgor of this
Pledge Agreement are within the Pledgor's corporate powers, have been
duly authorized by all necessary corporate action, and do not
contravene, or constitute a default under, any provision of applicable
law or regulation or of the certificate of incorporation or the By-laws
of the Pledgor or of any agreement, judgment, injunction, order, decree
or other instrument binding upon the Pledgor or result in the creation
or imposition of any lien on any assets of the Pledgor, except for the
security interests granted under this Pledge Agreement.
(b) The Pledged Shares have been duly authorized and validly issued
and are fully paid and non-assessable. Each instrument evidencing the
Pledged Indebtedness has been duly authorized and executed by the Issuer
issuing such instrument and constitutes a legal, valid and binding
obligation of such Issuer, enforceable against the Issuer in accordance
with its terms, except as such enforceability may be limited by the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
or general principles of equity and commercial reasonableness.
(c) The Pledgor is the legal, record and beneficial owner of the
Collateral, free and clear of any lien or claims of any person except
for the security interest created by this Pledge Agreement.
(d) This Pledge Agreement has been duly executed and delivered by
the Pledgor and constitutes a legal, valid and binding obligation of the
Pledgor, enforceable against the Pledgor in accordance with its terms,
except as such enforceability may be limited by the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally or general principles
of equity and commercial reasonableness.
(e) Upon the delivery to the Trustee of the Collateral (and as to
certain proceeds thereof, subject to Section 9-306 of the UCC), the
pledge of the Collateral pursuant to this Pledge Agreement creates a
valid and perfected first priority security interest in the Collateral,
securing the payment of the Obligations for the benefit of the Trustee
and the Holders, and enforceable as such against all creditors of the
Pledgor and any persons purporting to purchase any of the Collateral
from the Pledgor other than as permitted hereby or by the Indenture.
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(f) No consent of any other person and no consent, authorization,
approval, or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the pledge by
the Pledgor of the Collateral pursuant to this Pledge Agreement or for
the execution, delivery or performance of this Pledge Agreement by the
Pledgor (except for filings necessary to perfect liens on certain
proceeds of the Collateral).
(g) No litigation, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the knowledge of
the Pledgor, threatened by or against the Pledgor or either of the
Issuers with respect to this Pledge Agreement or any of the transactions
contemplated hereby and, as of the date of the Pledgor's Amended and
Restated Offer to Exchange and Consent Solicitation relating to the Old
Debentures (the 'Amended and Restated Offer to Exchange and Consent
Solicitation'), there is no other material litigation pending or, to the
knowledge of the Pledgor, threatened against either of the Issuers
except as set forth in the Amended and Restated Offer to Exchange and
Consent Solicitation, including without limitation, in the notes to the
financial statements of the respective Issuers contained therein.
(h) The Pledged Shares constitute all of the authorized, issued and
outstanding capital stock of the respective Issuers beneficially owned
by the Pledgor.
(i) Except for certain preemptive rights under that certain
Stockholders' Agreement, dated as of November 15, 1991, by and among
CooperSurgical, the Pledgor and certain other persons who have purchased
Registrable Securities (as defined therein) (the 'Stockholders'
Agreement'), there are no outstanding options, rights or warrants to
acquire shares of capital stock of either of the Issuers.
(j) The financial statements of the Issuers contained in the
Amended and Restated Offer to Exchange and Consent Solicitation have
been prepared in accordance with GAAP.
(k) As of the date hereof, all information set forth herein
relating to the Collateral is accurate and complete in all respects.
SECTION 5. Further Assurance. The Pledgor will execute and deliver or
cause to be executed and delivered, or use its best efforts to procure, all
stock powers, proxies, assignments, instruments and other documents, all in
form and substance satisfactory to the Trustee, deliver any instruments to
the Trustee and take any other actions that are necessary or, in the
reasonable opinion of the Trustee, desirable to perfect, continue the
perfection of, or protect the first priority of the Trustee's security
interest in the Collateral, to protect the Collateral against the rights,
claims, or interests of third persons or to effect the purposes of this
Pledge Agreement. The Pledgor also hereby authorizes the Trustee to file
any financing or continuation statements with respect to the Collateral
without the signature of the Pledgor to the extent permitted by applicable
law. The Pledgor will pay all costs incurred in connection with any of the
foregoing.
SECTION 6. Beneficial Ownership; Voting Rights; Dividends.
(a) So long as no Event of Default shall have occurred and be
continuing and written notice of such occurrence or continuance has not
been delivered by the Trustee to the Pledgor, the Pledgor shall remain
for all purposes the beneficial owner of the Collateral and the Trustee,
for itself and the ratable benefit of the Holders, shall not be deemed
to have a beneficial or direct or indirect ownership interest in the
Collateral but, rather, to have a secured party's lien upon the
Collateral in accordance with the terms hereof. Without limiting the
generality of the foregoing, the Pledgor shall have the rights set forth
below.
(b) So long as no Event of Default shall have occurred and be
continuing and written notice of such occurrence or continuance has not
been delivered by the Trustee to the Pledgor, the Pledgor shall be
entitled to exercise any and all voting and other consensual rights
pertaining to the Pledged Shares or any part thereof for any purpose not
inconsistent with the terms of this Pledge Agreement or the Indenture;
provided, however, that the Pledgor shall not exercise or shall refrain
from exercising any such right if such action would be inconsistent with
or violate any provisions of this Pledge Agreement or the Indenture.
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(c) So long as no Event of Default shall have occurred and be
continuing and written notice of such occurrence or continuance has not
been delivered by the Trustee to the Pledgor, and subject to Section
7(b) hereof, the Pledgor shall be entitled to receive and utilize, free
and clear of the lien of this Pledge Agreement, all dividends and
distributions paid from time to time with respect to the Pledged Shares.
(d) So long as no Event of Default shall have occurred and be
continuing and written notice of such occurrence or continuance has not
been delivered by the Trustee to the Pledgor, the Pledgor shall be
entitled to (i) receive and utilize, free and clear of the lien of this
Pledge Agreement, all payments made from time to time of principal of
and interest on any of the Pledged Indebtedness (including with respect
to any additional loans or advances pursuant to clause (ii)); (ii) make
additional loans or advances to the Issuers (whether or not evidenced by
any instrument or document and whether or not any Event of Default has
occurred or written notice thereof has been given); (iii) make or modify
the interest rate or any terms of the Pledged Indebtedness, including
without limitation, the maturity thereof; and (iv) forgive or capitalize
the Pledged Indebtedness.
(e) The Trustee shall execute and deliver (or cause to be executed
and delivered) to the Pledgor all such proxies and other instruments as
the Pledgor may reasonably request for the purpose of enabling the
Pledgor to exercise and receive the voting and other rights and benefits
that it is entitled to exercise and receive pursuant to Sections 6(a),
(b), (c) and (d) above.
(f) Upon the occurrence and during the continuance of an Event of
Default and after written notice by the Trustee to the Pledgor of such
occurrence or continuance pursuant to the terms of the Indenture, (i)
all rights of the Pledgor to exercise the voting and other consensual
rights that it would otherwise be entitled to exercise pursuant to
Sections 6(a) and (b) shall cease, and all such rights shall thereupon
become vested in the Trustee, which shall thereupon have the sole right
to exercise such voting and other consensual rights, and (ii) all
dividends, distributions and interest or principal payments payable in
respect of the Collateral shall be paid to the Trustee and the Pledgor's
right to receive such payments pursuant to Sections 6(a), (c) and (d)
hereof shall immediately cease.
(g) Upon the occurrence and during the continuance of an Event of
Default and after written notice by the Trustee to the Pledgor of such
occurrence or continuance pursuant to the terms of the Indenture, the
Pledgor shall execute and deliver (or cause to be executed and
delivered) to the Trustee all such proxies and other instruments as the
Trustee may reasonably request for the purpose of enabling the Trustee
to exercise the voting and other rights that it is entitled to exercise
pursuant to Section 6(f) above.
(h) All dividends, distributions and interest or principal payments
that are received by the Pledgor contrary to the provisions of this
Section 6 shall be received in trust for the benefit of the Trustee and
the Holders, be segregated from the other property or funds of the
Pledgor and be forthwith delivered to the Trustee as Collateral in the
same form as so received (with any necessary endorsements).
SECTION 7. Covenants. The Pledgor covenants and agrees with the
Trustee and the Holders from and after the date of this Pledge Agreement
until the Obligations have been paid in full:
(a) Except as provided in Sections 11.03 of the Indenture, the
Pledgor agrees that it will not (i) sell or otherwise dispose of, or
grant any option or warrant with respect to, any of the Collateral or
grant any option or warrant with respect to any of the capital stock of
the Issuers or any of their Subsidiaries or (ii) create or permit to
exist any lien upon or with respect to any of the Collateral, except for
the security interest granted under this Pledge Agreement, and at all
times will be the sole beneficial owner of the Collateral.
(b) The Pledgor agrees that immediately upon becoming the
beneficial owner of any additional shares of capital stock, notes or
other securities of any of the Issuers (so long as the securities of
such Issuer have not previously been released from the security interest
created by this Pledge Agreement) it will pledge and deliver to the
Trustee for its benefit and the ratable
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benefit of the Holders and grant to the Trustee for its benefit and the
ratable benefit of the Holders, a continuing first priority security
interest in such shares, notes or other securities (as well as duly
executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Trustee). Pledgor further agrees that it
will promptly deliver to the Trustee a pledge amendment, duly executed
by the Pledgor, in substantially the form of Exhibit A hereto (a 'Pledge
Amendment'), with respect to the additional Collateral that is to be
pledged pursuant to this Pledge Agreement. The Pledgor hereby authorizes
the Trustee to attach each Pledge Amendment to this Agreement and agrees
that any stock, notes or other securities listed on any Pledge Amendment
delivered to the Trustee shall for all purposes hereunder be considered
Collateral.
SECTION 8. Power of Attorney. In addition to all of the powers granted
to the Trustee pursuant to Article 6 of the Indenture, the Pledgor hereby
appoints and constitutes the Trustee as the Pledgor's attorney-in-fact to
exercise all of the following powers upon and at any time after the
occurrence and during the continuance of an Event of Default and after
written notice by the Trustee to the Pledgor of such occurrence or
continuance pursuant to the terms of the Indenture: (i) collection of the
proceeds from the sale or disposition of any Collateral; (ii) conveyance of
any item of Collateral to any purchaser thereof; (iii) giving of any
notices or recording of any liens under Section 5 hereof; (iv) making of
any payments or taking any acts under Section 9 hereof; and (v) paying or
discharging liens levied or placed upon the Collateral, the legality or
validity thereof and the amounts necessary to discharge the same to be
determined by the Trustee in its sole discretion, and such payments made by
the Trustee to become the Obligations of the Pledgor to the Trustee, due
and payable immediately upon demand. This power of attorney is coupled with
an interest and is irrevocable by the Pledgor.
SECTION 9. Trustee May Perform. If the Pledgor fails to perform any
agreement contained herein, the Trustee may itself perform, or cause
performance of, such agreement, and the reasonable expenses of the Trustee
incurred in connection therewith shall be payable by the Pledgor under
Section 14 hereof.
SECTION 10. No Assumption of Duties; Reasonable Care. The rights and
powers granted to the Trustee hereunder are being granted in order to
preserve and protect the Trustee's and the Holders' security interest in
and to the Collateral granted hereby and shall not be interpreted to, and
shall not, impose any duties on the Trustee in connection therewith. The
Trustee shall be deemed to have exercised reasonable care in the custody
and preservation of the Collateral in its possession if the Collateral is
accorded treatment substantially equal to that which the Trustee accords
similar property in similar situations, it being understood that the
Trustee shall not have any 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 the Trustee has
or is 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 11. Subsequent Changes Affecting Collateral. The Pledgor
represents to the Trustee and the Holders that the Pledgor has made its own
arrangements for keeping informed of changes or potential changes affecting
the Collateral (including, but not limited to, rights to convert, rights to
subscribe, payment of dividends, payments of interest and/or principal,
reorganization or other exchanges, tender offers and voting rights), and
the Pledgor agrees that the Trustee and the Holders shall have no
responsibility or liability for informing the Pledgor of any such changes
or potential changes or for taking any action or omitting to take any
action with respect thereto.
SECTION 12. Remedies Upon Event of Default and Written Notice.
(a) If any Event of Default shall have occurred and be continuing
and after written notice by the Trustee to the Pledgor of such
occurrence or continuance pursuant to the terms of the Indenture, the
Trustee and the Holders shall have, in addition to all other rights
given by law or by this Pledge Agreement or the Indenture, all of the
rights and remedies with respect to the Collateral of a secured party
under the UCC in effect in the State of New York at that time. In
addition, the Trustee may, with written notice to the Pledgor, transfer
or register, and
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the Pledgor shall register or cause to be registered upon request
therefore by the Trustee, the Collateral or any part thereof on the
books of the Issuer thereof into the name of the Trustee or the
Trustee's nominee(s). In addition, with respect to any Collateral that
shall then be in or shall thereafter come into the possession or custody
of the Trustee, the Trustee may sell or cause the same to be sold at any
broker's board or at public or private sale, in one or more sales or
lots, at such price or prices as the Trustee may deem best, for cash or
on credit or for future delivery, without assumption of any credit risk.
The purchaser of any or all Collateral so sold shall thereafter hold the
same absolutely, free from any claim, encumbrance or right of any kind
whatsoever. Unless any of the Collateral threatens to decline speedily
in value or is or becomes of a type sold on a recognized market, the
Trustee will give the Pledgor reasonable written notice of the time and
place of any public sale thereof, or of the time after which any private
sale or other intended disposition is to be made. Any sale of the
Collateral conducted in conformity with reasonable commercial practices
of banks, insurance companies, commercial finance companies, or other
financial institutions disposing of property similar to the Collateral
shall be deemed to be commercially reasonable. Any requirements of
reasonable written notice shall be met if such notice is mailed to the
Pledgor as provided in Section 16.1 herein, at least thirty (30) days
before the time of the sale or disposition. The Trustee or any Holder
may, in its own name or in the name of a designee or nominee, buy any of
the Collateral at any public sale and, if permitted by applicable law,
at any private sale. All fees and expenses (including court costs and
reasonable attorneys' fees, expenses and disbursements) of, or incident
to, the enforcement of any of the provisions hereof shall be recoverable
from the proceeds of the sale or other disposition of the Collateral.
(b) THE COLLATERAL HAS NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION AND MAY NOT BE
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR A VALID EXCEPTION THEREFROM AND
COMPLIANCE WITH ALL APPLICABLE SECURITIES OR BLUE SKY LAWS.
SECTION 13. Irrevocable Authorization and Instruction to the Issuers.
The Pledgor hereby authorizes and instructs each Issuer to comply with any
instruction received by the Issuer from the Trustee that (i) states that an
Event of Default has occurred, (ii) provides proof of written notice by the
Trustee to the Pledgor of such Event of Default, and (iii) is otherwise in
accordance with the terms of this Pledge Agreement, without any other or
further instructions from the Pledgor, and the Pledgor agrees that each
Issuer shall be fully protected in so complying.
SECTION 14. Expenses. The Pledgor will upon demand pay to the Trustee
the amount of any and all reasonable fees and expenses, including, without
limitation, the reasonable fees, expenses and disbursements of its counsel,
experts and agents retained by the Trustee that the Trustee may incur in
connection with (i) the administration of this Pledge Agreement, (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or enforcement
of any of the rights of the Trustee and the Holders hereunder or (iv) the
failure by the Pledgor to perform or observe any of the provisions hereof.
SECTION 15. Security Interest Absolute. All rights of the Trustee and
the Holders of security interests hereunder, and all obligations of the
Pledgor hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Indenture or any
other agreement or instrument relating thereto;
(b) 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 Indenture;
(c) any exchange, surrender, release or non-perfection of any liens
on any other collateral, or any release or amendment or waiver of or
consent to departure from any guarantee, for all or any of the
Obligations; or
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(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Pledgor with respect to the
Obligations of this Pledge Agreement.
SECTION 16. Miscellaneous Provisions.
SECTION 16.1 Notices. All notices, approvals, consents or other
communications required or desired to be given hereunder shall be in the
form and manner, and delivered to each of the parties hereto at their
respective addresses, as set forth or provided for in Section 12.02 of the
Indenture.
SECTION 16.2 Sales of Collateral. No sales of Collateral may be made
in contravention of the terms of the Indenture and this Pledge Agreement.
SECTION 16.3 No Adverse Interpretation of Other Agreements. This
Pledge Agreement may not be used to interpret another pledge, security or
debt agreement of the Pledgor, any Issuer or any subsidiary thereof other
than the Indenture. No such pledge, security or debt agreement other than
the Indenture may be used to interpret this Pledge Agreement. The terms of
the Indenture shall govern any inconsistencies between the Indenture and
this Pledge Agreement.
SECTION 16.4 Severability. The provisions of this Pledge Agreement are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity
or unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause
or provision in any other jurisdiction or any other clause or provision of
this Pledge Agreement in any jurisdiction.
SECTION 16.5 Headings. The headings in this Pledge Agreement have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
SECTION 16.6 Counterpart Originals. This Pledge Agreement may be
signed in two or more counterparts, each of which shall be deemed an
original, but all of which shall together constitute one and the same
agreement.
SECTION 16.7 Benefits of Pledge Agreement. Nothing in this Pledge
Agreement, express or implied, shall give to any person, other than the
parties hereto and their successors hereunder, and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Pledge
Agreement.
SECTION 16.8 Amendments, Waivers and Consents. Any amendment or waiver
of any provision of this Pledge Agreement and any consent to any departure
by the Pledgor from any provision of this Pledge Agreement shall be
effective only if made or given in compliance with all of the terms and
provisions of the Indenture and neither the Trustee nor any Holder shall be
deemed, by any act, delay, indulgence, omission or otherwise, 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. Failure of the Trustee or any Holder to exercise, or delay in
exercising, any right, power or privilege hereunder shall not operate as a
waiver thereof. No single or partial exercise of 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 the
Trustee or any Holder of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy that the Trustee or
such Holder would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by
law.
SECTION 16.9 Interpretation of Pledge Agreement. Capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Indenture. All terms not defined herein or in the Indenture shall have the
meaning set forth in the applicable UCC, except where the context otherwise
requires. To the extent a term or provision of this Pledge Agreement
conflicts with the Indenture, the Indenture shall control with respect to
the subject matter of such term or provision. Acceptance of or acquiescence
in a course of performance rendered under this Pledge Agreement shall not
be relevant to determine the meaning of this Pledge Agreement even though
the accepting or acquiescing party had knowledge of the nature of the
performance and opportunity for objection.
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SECTION 16.10 Continuing Security Interest; Transfer of Securities.
This Pledge Agreement shall create a continuing security interest in the
Collateral and shall, unless otherwise provided in the Indenture or in this
Pledge Agreement, remain in full force and effect until the payment in full
of (A) the Notes under the terms of the Indenture and (B) all Obligations
then due and owing under the Indenture, the Notes and this Pledge
Agreement; provided, however, that after receipt from the Pledgor by the
Trustee of a request for a release of any Collateral permitted under
Section 11.03, 11.04, or 11.05 of the Indenture, and upon satisfaction of
the conditions precedent thereto set forth in Article 11 of the Indenture,
such Collateral and all proceeds thereof shall be released from the lien
and security interest created hereunder and no longer constitute Collateral
and the Trustee shall otherwise comply with Article 11 of the Indenture.
Upon the payment in full of (A) the Notes under the terms of the Indenture
and (B) all Obligations then due and owing under the Indenture, the Notes
and this Pledge Agreement, the Pledgor shall be entitled to the return,
upon its request and at its expense, of such of the Collateral pledged by
it as shall not have been sold, disposed of, retained or otherwise applied
pursuant to the terms hereof. This Pledge Agreement shall be binding upon
the Pledgor, its successors and assigns, and inure, together with the
rights and remedies of the Trustee hereunder, to the benefit of the
Trustee, the Holders and their respective successors, transferees and
assigns.
SECTION 16.11 Reinstatement. This Pledge Agreement shall continue to
be effective or be reinstated if at any time any amount received by the
Trustee or any Holder in respect of the Obligations is rescinded or must
otherwise be restored or returned by the Trustee or any Holder upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Pledgor or upon the appointment of any receiver, intervenor, conservator,
trustee or similar official for the Pledgor or any substantial part of its
assets, or otherwise, all as though such payments had not been made.
SECTION 16.12 Survival of Provisions. All representations, warranties
and covenants of the Pledgor contained herein shall survive the execution
and delivery of this Pledge Agreement, and shall terminate only upon the
full and final payment and performance by the Pledgor of the Obligations.
SECTION 16.13 Demand or Notice. The Pledgor waives the right to
presentment and demand for payment of any of the Obligations, protest and
notice of dishonor or default with respect to any of the Obligations, and
all other notices to which the Pledgor might otherwise be entitled, except
as otherwise expressly provided herein or in the Indenture.
SECTION 16.14 Authority of the Trustee.
(a) The Trustee shall have and be entitled to exercise all powers
hereunder that are specifically granted to the Trustee by the terms
hereof, together with such powers as are reasonably incident thereto.
The Trustee may perform any of its duties hereunder or in connection
with the Collateral by or through agents or employees and shall be
entitled to retain counsel and to act in reliance upon the advice of
counsel concerning all such matters. Neither the Trustee, any director,
officer, employee, attorney or agent of the Trustee nor the Holders
shall be liable to the Pledgor for any action taken or omitted to be
taken by it or them hereunder, except for its or their own negligence or
willful misconduct, nor shall the Trustee be responsible for the
validity, effectiveness or sufficiency hereof or of any document or
security furnished pursuant hereto. The Trustee and its directors,
officers, employees, attorneys and agents shall be entitled to rely on
any communication, instrument or document believed by it or them to be
genuine and correct and to have been signed or sent by the proper person
or persons.
(b) The Pledgor acknowledges that the rights and responsibilities
of the Trustee under this Pledge Agreement with respect to any action
taken by the Trustee or the exercise or non-exercise by the Trustee of
any option, right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Pledge Agreement shall,
as between the Trustee and the Holders, be governed by the Indenture and
by such other agreements with respect thereto as may exist from time to
time among them, but, as between the Trustee and the Pledgor, the
Trustee shall be conclusively presumed to be acting as agent for the
Holders
8
with full and valid authority so to act or refrain from acting, and the
Pledgor shall not be obligated or entitled to make any inquiry
respecting such authority.
SECTION 16.15 Limitation by Law. All rights, remedies and powers
provided herein may be exercised only to the extent that they will not
render this Pledge Agreement not entitled to be recorded, registered or
filed under provisions of any applicable law.
SECTION 16.16 Release; Termination of Pledge Agreement.
(a) Subject to the provisions of Section 16.11 hereof, this Pledge
Agreement and the liens in respect of the Collateral shall terminate (i)
upon payment in full of (A) the Notes under the terms of the Indenture
and (B) all Obligations then due and owing under the Indenture, the
Notes and this Pledge Agreement, (ii) upon Legal Defeasance of all of
the Obligations pursuant to Section 8.02 of the Indenture (other than
those surviving Obligations specified therein), or (iii) with respect to
any Collateral, upon the release thereof pursuant to Article 11 of the
Indenture. At such time and after payment to the Trustee of its fees and
expenses (including the fees and expenses of legal counsel) due and
owing hereunder and under the Indenture and the Notes, the Trustee
shall, at the request of the Pledgor, reassign and redeliver to the
Pledgor all of the Collateral hereunder that has not been sold, disposed
of, retained or otherwise applied by the Trustee in accordance with the
terms of the Indenture free and clear of the lien and security interest
under this Pledge Agreement. Such reassignment and redelivery shall be
without warranty by or recourse to the Trustee, except as to the absence
of any prior assignments by the Trustee of its interest in the
Collateral, and shall be at the expense of the Pledgor.
(b) The Pledgor agrees that it will not, except as contemplated by
Article 11 of the Indenture, contribute, sell or otherwise dispose of or
pledge any of the Collateral, provided, however, that if the Pledgor
shall contribute, sell or otherwise dispose of or pledge any of the
Collateral in a manner contemplated by Article 11 of the Indenture, the
Trustee shall, upon the satisfaction of all conditions precedent
thereto, at the request of the Pledgor, release the Collateral subject
to such disposition free and clear of the lien and security interest
under this Pledge Agreement and shall otherwise comply with Article 11
of the Indenture.
SECTION 16.17 Stockholders' Agreement. The Trustee hereby agrees to be
bound by and comply with all of the provisions of Section 4 of the
Stockholders' Agreement as and to the same extent applicable to the
Pledgor.
SECTION 16.18 Final Expression. This Pledge Agreement, together with
any other agreement executed in connection herewith, is intended by the
parties as a final expression of this Pledge Agreement and is intended as a
complete and exclusive statement of the terms and conditions thereof.
SECTION 16.19 Rights of Holders. No Holder shall have any independent
rights hereunder other than those rights granted to individual Holders
pursuant to Section 6.06 of the Indenture.
SECTION 16.20 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL.
(i) THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED
UNDER THE LAWS OF THE STATE OF NEW YORK, AND ANY DISPUTE ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THE PLEDGOR, THE TRUSTEE AND THE HOLDERS IN
CONNECTION WITH THIS PLEDGE AGREEMENT, AND WHETHER ARISING IN CONTRACT,
TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE
INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAWS PROVISIONS) AND
DECISIONS OF THE STATE OF NEW YORK.
(ii) THE PLEDGOR AGREES THAT THE TRUSTEE SHALL, IN ITS CAPACITY AS
TRUSTEE OR IN THE NAME AND ON BEHALF OF ANY HOLDERS, HAVE THE RIGHT, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED
9
AGAINST THE PLEDGOR OR ITS PROPERTY IN A COURT IN ANY LOCATION
REASONABLY SELECTED IN GOOD FAITH TO ENABLE THE TRUSTEE TO REALIZE ON
SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN
FAVOR OF THE TRUSTEE. THE PLEDGOR WAIVES ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT IN WHICH THE TRUSTEE HAS COMMENCED A
PROCEEDING DESCRIBED IN THIS PARAGRAPH INCLUDING, WITHOUT LIMITATION,
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS.
(iii) THE PLEDGOR AND THE TRUSTEE EACH WAIVE ANY RIGHT TO HAVE A
JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION
WITH THIS PLEDGE AGREEMENT. INSTEAD, ANY DISPUTES RESOLVED IN COURT WILL
BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
[SIGNATURE PAGE FOLLOWS]
10
IN WITNESS WHEREOF, the Pledgor and the Trustee have each caused this
Pledge Agreement to be duly executed and delivered as of the date first above
written.
PLEDGOR:
THE COOPER COMPANIES, INC.,
a Delaware corporation
By: /s/ ROBERT S. WEISS
...................................
Name: Robert S. Weiss
Title: Sr. Vice President, Treasurer
and Chief Financial Officer
TRUSTEE:
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By: Nancy R. Besse
...................................
Name: Nancy R. Besse
Title: Vice President
11
SCHEDULE I
PLEDGED SHARES
NUMBER AND CLASS OF PLEDGED
ISSUER SHARES SHARE CERTIFICATE NUMBER PERCENTAGE OF OUTSTANDING
- --------------------------- --------------------------- --------------------------- ---------------------------
Hospital Group of America, 1,000 shares of Common 1 100%
Inc. Stock
CooperSurgical, Inc. 640,000 shares of Series A 1 100% of outstanding Series
Preferred Stock A Preferred Stock
(representing approximately
98% of the outstanding
voting power)
12
SCHEDULE II
PLEDGED INDEBTEDNESS
ISSUER DESCRIPTION OF INDEBTEDNESS PRINCIPAL AMOUNT OF INDEBTEDNESS
- ------------------------------------ ------------------------------------ ------------------------------------
PSG Acquisition, Inc. (Prior name of Subordinated Promissory Notes dated $16,000,000 (subject to increase as
Hospital Group of America, Inc.) May 29, 1992 payable May 29, 2002 set forth in Section 4(a) thereof)
Hospital Group of America, Inc. Demand Note dated December 1, 1993 $1,000,000 or such other amount as
shall be reflected as an
intercompany receivable from
Hospital Group of America, Inc. in
accordance with The Cooper
Companies, Inc.'s books and records
at the time then outstanding, other
than the intercompany indebtedness
represented by that certain
Subordinated Promissory Note of PSG
Acquisition, Inc. (prior name of
Hospital Group of America, Inc.)
dated May 29, 1992
CooperSurgical, Inc. Demand Note dated December 1, 1993 $22,576,732 or such other amount as
shall be reflected as an
intercompany receivable from
CooperSurgical, Inc. in accordance
with The Cooper Companies, Inc.'s
books and records at the time then
outstanding
13
SCHEDULE III
DISCLOSURE SCHEDULE
1. Section 6.7 of that certain Amended and Restated Loan and Security
Agreement, dated May 29, 1992 (the 'Foothill Agreement'), among HGD, HGI, HGNJ
(collectively, for purposes of the Foothill Agreement, the 'Borrower') and
Foothill, provides that the Borrower will not do any of the following:
'Cause, permit, or suffer any change, direct or indirect, in
Borrower's ownership in excess of ten percent (10%). Notwithstanding the
provisions of this subsection, Foothill hereby consents to the concurrent
sale of all of the issued and outstanding stock of HGA to PSG and the
merger of HGA into PSG. Foothill's consent herein shall not constitute a
waiver of any subsequent acts of Borrower. The foregoing notwithstanding,
nothing contained herein shall in any way restrict the transfer of any of
the ownership interests in The Cooper Companies, Inc. a Delaware
corporation.'
A transfer of ownership pursuant to an exercise of remedies under the
Pledge Agreement may require the written consent of Foothill pursuant to the
foregoing covenant.
2. Section 6.26(B) of that certain Bond Purchase and Loan Agreement, dated
December 18, 1985, as amended (the 'Bond Purchase Agreement'), among New Castle
County, Delaware (the 'Issuer'), National Westminster Bank USA (the 'Bond
Purchaser') and HGD (for purposes of the Bond Purchase Agreement, the
'Borrower'), provides the following:
'There shall not occur a transfer of any of the beneficial ownership
interest (whether in a single transaction or a series of transactions) in
the Borrower or Hospital Group of America, Inc. provided, however, that a
change in the ownership of Nu-Med, Inc. shall not constitute a change in
the ownership of Hospital Group of Delaware, Inc. or Hospital Group of
America, Inc. without the consent of the Issuer and the Bond Purchaser.'
A transfer of ownership pursuant to an exercise of remedies under the
Pledge Agreement may require the consent of the Issuer and the Bond Purchaser
pursuant to the foregoing covenant.
3. The Pledgor is a party to that certain Stockholders' Agreement, dated as
of November 15, 1991 (the 'Stockholders' Agreement'), by and among
CooperSurgical, Inc. ('CooperSurgical'), the Pledgor and certain other persons
who have purchased Registrable Securities (as defined therein). Section 4.1 of
the Stockholders' Agreement provides, in part, that in the event that any Holder
(as defined therein) of more than 20% of the CooperSurgical capital stock (or
any permitted transferee thereof pursuant to Section 4.5 thereof (the
'Offeree')) receives one or more bona fide offers from a third-party
(collectively, the 'Purchase Offer'), to purchase any Securities held by such
Offeree upon specific terms and conditions, then the Offeree shall promptly
notify the other Holders of the terms and conditions of such Purchase Offer, and
each of the other Holders shall have the right to participate in the Offeree's
sale of Securities pursuant to the specified terms and conditions of such
Purchase Offer. Section 4.5 of the Stockholders' Agreement provides, in part,
that the participation rights of Holders shall not pertain or apply to any
pledge of the CooperSurgical stock which creates a mere security interest,
provided the pledgee shall furnish the other parties to the Stockholders'
Agreement with a written agreement to be bound by and comply with all provisions
of Section 4 of the Stockholders' Agreement as and to the same extent applicable
to the pledgor. Section 16.17 of the Pledge Agreement contains the agreement of
the Trustee to be bound by and comply with all provisions of Section 4 of the
Stockholders' Agreement as and to the same extent applicable to the Pledgor and
a copy of the executed Pledge Agreement will be furnished to the other parties
to the Stockholders' Agreement in compliance with Section 4.5 thereof. If in
exercising its remedies under the Pledge Agreement the Trustee sells or
transfers the Pledged CooperSurgical Shares, it will be obligated to comply with
the provisions of Section 4 of the Stockholders' Agreement.
14
EXHIBIT A
PLEDGE AMENDMENT
This Pledge Amendment, dated , , is delivered pursuant to Section
7 of the Pledge Agreement referred to below. The undersigned hereby pledges to
the Trustee for its benefit and the ratable benefit of the Holders, and grants
to the Trustee for its benefit and the ratable benefit of the Holders, a
continuing first priority security interest in all of its right, title and
interest in the shares of stock and intercompany notes listed on Schedule A
hereto.
The undersigned hereby agrees that this Pledge Amendment may be attached to
the Pledge Agreement, dated as of , 1994, between the undersigned and
IBJ Schroder Bank & Trust Company, as Trustee (the 'Pledge Agreement');
capitalized terms used herein and not otherwise defined herein shall have the
meanings given to such terms in the Pledge Agreement; and the Collateral listed
on this Pledge Amendment shall be deemed to be part of the Collateral, and shall
become part of the Collateral and shall secure all Obligations.
[PLEDGOR]
By:
...................................
Name:
Title:
15
SCHEDULE A
PLEDGED SHARES
NUMBER AND CLASS OF PLEDGED
ISSUER SHARES SHARE CERTIFICATE NUMBER PERCENTAGE OF OUTSTANDING
- --------------------------- --------------------------- --------------------------- ---------------------------
--------------------------- --------------------------- ---------------------------
--------------------------- --------------------------- ---------------------------
PLEDGED INDEBTEDNESS
ISSUER DESCRIPTION OF INDEBTEDNESS PRINCIPAL AMOUNT OF INDEBTEDNESS
- ------------------------------------ ------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
16