Exhibit 10.2
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (the "Pledge Agreement"),
dated as of August 15, 2001, is by and between ▇▇▇▇▇ Task ("Task"), an
individual residing at ▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and The Princeton
Review, Inc., a Delaware corporation having an address at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("TPR").
W I T N E S S E T H:
WHEREAS, contemporaneously herewith TPR is making a loan (the
"Loan") to Task in an aggregate amount of up to five hundred thousand dollars
($500,000), the terms of which are set forth in a non-recourse promissory
note, dated the date hereof (the "Note"); and
WHEREAS, it is a condition precedent to TPR's obligation to
make the Loan to Task that Task enter into this Pledge Agreement to provide
TPR with the Shares as security for the payment of the obligations of Task to
TPR under the Note.
NOW, THEREFORE, in consideration of TPR's agreement to make the
Loan to Task and in order to provide TPR with assurance of the payment of
Task's obligations under the Note, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Defined Terms. As used in this Pledge Agreement the
following terms shall have the following meanings:
"Collateral" means the Shares and all Proceeds.
"Proceeds" shall mean "proceeds" as such term is defined
in Article 9 of the UCC and, in any event, shall mean and include, but not be
limited to, the following at any time whatsoever arising or receivable: (i)
whatever is received upon any collection, exchange, sale or other disposition
of any of the Collateral and any property into which any of the Collateral is
converted, whether cash or non-cash proceeds, (ii) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to Task from time to time
with respect to any of the Collateral, (iii) any and all payments (in any form
whatsoever) made or due and payable to Task from time to time in connection
with any requisition, confiscation, condemnation, seizure or forfeiture of all
or any part of the Collateral by any governmental body, authority, bureau or
agency (or any person acting under color or governmental authority) and (iv)
any and all other amounts from time to time paid, payable, distributed or
distributable under or in connection with any of the Collateral.
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"Shares" shall mean that number of shares of Class B
non-voting common stock of TPR, or that number of shares of common stock of
TPR issued upon conversion of Class B non-voting common stock, owned by Task
with a Fair Market Value (as defined below) equal to 250% of the outstanding
principal amount of the Loan as calculated on the date of the written request
by Task for funds under the Loan.
"UCC" shall mean the Uniform Commercial Code as the same
may be in effect in the State of New York from time to time.
2. Grant and Perfection of Security Interest. To secure the
Secured Obligations (as defined in Section 3 of this Pledge Agreement), Task
hereby pledges to TPR the Shares, as set forth on Schedule I of this
Agreement, and grants to TPR a first priority security interest in the
Collateral. From time to time after the execution of this Agreement, Task
shall execute such financing statements and other instruments and documents
which, in the judgment of TPR, may be reasonably necessary, desirable or
appropriate to perfect, record or evidence the security interest of TPR in the
Collateral. Task hereby authorizes TPR to execute and file such financing
statements, instruments and documents on behalf of Task as its
attorney-in-fact. Task shall pay to TPR reasonable and customary costs and
expenses (including, without limitation, filing fees and recording and stamp
taxes) incurred in filing and recording such financing statements, instruments
and documents as well as any such fees and taxes which may be imposed on or
with respect to the Collateral or this Agreement.
3. Secured Obligations. This Pledge Agreement secures, and
the Collateral is collateral security for (i) the prompt payment in full when
due, whether by acceleration or otherwise, of the principal of and interest on
the Note, (ii) the performance of all obligations and liabilities of Task to
TPR pursuant to the provisions of the Note and this Pledge Agreement and (iii)
the payment of any costs and expenses in connection with collection or
otherwise related to the Note or the Pledge Agreement. All such obligations
are hereinafter collectively referred to as the "Secured Obligations."
4. Delivery of Pledged Shares. Simultaneously with the
execution of this Pledge Agreement Task shall deliver the certificates
representing the Shares (the "Certificates") to TPR at such place as TPR shall
reasonably request. Task hereby authorizes TPR to indicate in its stock
records, or to cause TPR's registrar or stock-transfer agent to indicate in
the records it maintains, that the Shares are subject to a security interest
in favor of TPR.
5. Non-Recourse. The Note and all Secured Obligations are
non-recourse to Task. Notwithstanding any provision hereof or of the Note to
the contrary, no deficiency or other judgment for payment of the principal or
interest under the Note or any other amount payable under the Note or this
Pledge Agreement shall be sought or entered by TPR against Task in any action
to enforce the Note or this Pledge Agreement, provided, however, the foregoing
shall not (a) release or impair the Secured Obligations or the lien of the
security interest granted in this Pledge Agreement, (b) affect the rights and
remedies of TPR under this Pledge Agreement, (c) prejudice the rights of TPR
under
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any other collateral instrument further securing the Secured Obligations, or
(d) release Task from any liability for fraud, misrepresentation or breach of
Section 9 of this Pledge Agreement. If, on the Maturity Date or Anniversary
(as defined in the Note), the stock of Task constituting the Collateral may
not be sold by Task pursuant to an effective registration statement under the
Securities Act of 1933 or the provisions of Rule 144 under that act or as a
result of any trading policy established by TPR, Task may either elect to
delay any required payment hereunder until the sale of such stock is no longer
restricted, or, by notice to TPR, may satisfy all Secured Obligations in full
by relinquishing his rights in (a) the Collateral or (b) that portion of the
Collateral (valued at Fair Market Value as of the Maturity Date or
Anniversary, as applicable, as described below) necessary to satisfy such
obligations, with the balance of the Collateral being forthwith assigned,
transferred and delivered by TPR to Task. For all purposes under this Pledge
Agreement and the Note, Fair Market Value of the Collateral shall be
determined as follows: (a) if the stock of TPR is then listed on Nasdaq or a
national securities exchange, the Fair Market Value of the stock of TPR shall
be the average closing price of such stock as reported on Nasdaq or the
applicable exchange for the 5 trading days preceding the date of the action
which requires the determination of Fair Market Value under this Pledge
Agreement (if the stock of TPR has been trading for fewer than 5 days, then
the Fair Market Value will be based on the average closing price of all
trading days preceding the date of such action) or (b) if the stock of TPR is
not then traded on Nasdaq or a national securities exchange, the Fair Market
Value will be the then applicable Agreed Value (as determined pursuant to the
Stockholders' Agreement, dated April 1, 2000, among TPR and its stockholders).
6. Representations and Warranties of Task. Task hereby
represents and warrants to TPR as follows:
(a) Task is the legal owner of the Shares, free and clear of
any liens, claims or encumbrances whatsoever other than a Stockholders
Agreement, dated as of April 1, 2000, by and among the Company and certain of
its stockholders, and a Lockup Letter, dated as of August 7, 2000, by Task in
favor of Chase Securities Inc. (the "Lockup Letter"), pursuant to which the
Shares may not be sold for 180 days after the date of TPR's final prospectus
for its planned initial public offering, and the lien and security interest
created by this Pledge Agreement.
(b) Task has full power, authority and legal right to pledge
and grant a first priority security interest in all the Collateral to TPR
pursuant to this Pledge Agreement.
(c) This Pledge Agreement has been duly and validly executed
and delivered by Task and constitutes the legal and valid obligation of Task,
enforceable against Task in accordance with its terms.
(d) No notice by Task to any governmental authority or
regulatory body or filing by Task with any governmental authority or
regulatory body is required, nor is Task required to obtain any consent,
authorization, approval or other action by any
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governmental authority or regulatory body, for (i) the execution, delivery or
performance of this Pledge Agreement by Task, (ii) the grant by Task of a
security interest in the Collateral pursuant to this Pledge Agreement or (iii)
the exercise by TPR of the rights provided for in this Pledge Agreement,
except for filings required to reflect changes in beneficial ownership
required under Section 16 of the Securities Exchange Act of 1934, as amended,
and except for the filing of a financing statement in the appropriate
jurisdictions to record the security interest created hereby.
(e) The execution of this Pledge Agreement and the delivery
of the Certificates to TPR pursuant to this Pledge Agreement create a valid
and perfected first priority security interest in the Collateral in favor of
TPR securing the payment of the Secured Obligations (assuming the filing of a
financing statement in the appropriate jurisdictions to record the security
interest created hereby).
7. Further Assurances. Task agrees that at any time and
from time to time Task will promptly execute and deliver all such further
instruments and documents and take all such further actions, as may be
necessary or as TPR may reasonably request, in order further to perfect and
protect the security interest in the Collateral in favor of TPR granted or
purported to be granted pursuant to this Pledge Agreement and to enable TPR to
exercise and enforce its rights and remedies hereunder with respect to any
Collateral.
8. Income, Dividends, Distributions or Other Payment. As
long as no Event of Default (as defined in the Note) shall have occurred and
be continuing, Task shall be entitled to receive and retain any and all
regular cash dividends paid on or with respect to the Collateral. Upon the
occurrence and during the continuance of an Event of Default, all rights of
Task to receive such dividends which Task would otherwise be authorized to
receive and retain pursuant to this Section 8 shall cease and all such rights
shall thereupon become vested in TPR which shall thereafter have the sole
right to receive and hold as Collateral such dividends during the continuance
of such Event of Default. All regular cash dividends which are received by
Task contrary to the provisions of this Section 8 and all other dividends or
other distributions paid on or with respect to the Collateral during the term
of this Pledge Agreement (including, without limitation, extraordinary cash
dividends and dividends in the form of property other than cash) shall be
received by Task in trust for the benefit of TPR, shall be segregated from
other funds of Task and shall immediately be paid over to TPR as Collateral in
the same form as so received (with any necessary endorsement). In order to
permit TPR to receive the dividends and other distributions paid on or with
respect to the Collateral which it is authorized to receive and retain
pursuant to this Section 8, Task shall, if necessary, upon written request of
TPR, from time to time execute and deliver (or cause to be executed and
delivered) to TPR all such payment orders and other instruments as TPR may
reasonably request.
9. Transfer and Other Liens. Task agrees that he will not
(a) sell or otherwise dispose of any of the Collateral or (b) create or permit
to exist any lien, security interest, charge or other encumbrance upon or with
respect to any of the
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Collateral, except for the Lockup Letter and the lien and security interest
granted under this Pledge Agreement. Any such lien, security interest, charge
or other encumbrance shall be null and void and of no force or effect
whatsoever.
10. Remedies Upon Default.
10.1 Upon the occurrence of an Event of Default (as defined
in the Note), TPR will give Task 30-days' written notice of any intent to
exercise or pursue the remedies provided hereunder. If such Event of Default
is not cured by Task within 5 business days of his receipt of written notice
from TPR, then TPR shall have 60 days after Task's failure to cure such Event
of Default to exercise or pursue its rights and remedies under this Section 10
for such Event of Default. TPR shall have all of the default rights, powers
and remedies of a secured party under Section 9-501 et seq. of the UCC, all of
the rights, powers and remedies available at law or in equity for the
enforcement of the Secured Obligations and the realization of the benefits of
this Agreement and the Collateral, and all of the following rights, powers and
remedies:
(a) to declare all of the Secured Obligations to be
immediately due and payable;
(b) to take immediate possession of the Collateral and sell,
at public or private sale or sales, lease, assign, collect, transfer or
otherwise dispose of it or realize upon it, provided that TPR shall sell or
dispose of only that portion of the Collateral necessary to fulfill the
Secured Obligations;
(c) to exercise and enforce all of the rights and powers and
pursue all of the remedies of Task in respect of the Collateral;
(d) to settle, adjust or compromise any claim or dispute in
respect of the Collateral; and
(e) to settle, adjust or compromise the Secured Obligations,
provided that TPR will not forgive the Loan or any amount due TPR under this
Agreement without the prior consent of Task.
10.2 TPR may apply all amounts actually realized by it
resulting from the exercise of any right or power or the pursuit of any remedy
after an Event of Default in such manner and in such order of priority as TPR
in its sole discretion may determine.
10.3 Any and all sales or other dispositions of the
Collateral by TPR shall not be at a price that is below the Fair Market Value
of the Collateral calculated as of the date of the Event of Default prompting
such sale or disposition. TPR or any nominee of TPR may be the purchaser,
assignee or transferee of all or any part of the Collateral.
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10.4 Task shall pay, immediately upon demand therefor, all
reasonable and customary costs and expenses (including counsel fees and
expenses) incurred by TPR in seeking to exercise any right or power or to
pursue any remedy in any manner relating to the Collateral or this Agreement
together with simple interest thereon at the rate of twelve percent (12%) per
annum from the date incurred to the date paid by Task. The liability of Task
arising under this Section 10.4 is without recourse to Task and shall be
included within the Secured Obligations secured by the Collateral.
11. No Waiver. No failure on the part of TPR to exercise, no
course of dealing with respect to and no delay in exercising any right, power
or remedy hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by TPR of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein provided are to the fullest extent permitted by
law cumulative and are not exclusive of any other remedies provided by law.
12. Amendments. No amendment or waiver of any provision of
this Pledge Agreement or consent to departure therefrom shall be effective
unless agreed to in writing by Task and TPR in the case of an amendment or by
TPR in the case of a waiver or consent to departure therefrom.
13. Termination of Security Interest and Release.
(a) When all Secured Obligations have been paid in full, this
Pledge Agreement shall terminate and TPR shall forthwith assign, transfer and
deliver to or on the order of Task, against receipt and without recourse to
TPR, such of the Collateral as shall not have been released, sold or otherwise
applied pursuant to the terms hereof.
(b) Task shall at all times retain the right to sell shares
represented by the Collateral, provided that the net proceeds from such sales
are used to prepay the Loan, and also provided that such sales are in
accordance with the provisions of the Stockholders Agreement and any
applicable underwriters' lock-up or similar agreements. TPR will release its
security interest in the Collateral to the extent necessary to permit any such
sales.
14. Addresses for Notices. All notices, requests, demands or
other communications to or from TPR or Task shall be in writing and shall be
deemed to have been duly given and made on the date when signed for or not
accepted following deposit in the mail if sent postage prepaid by certified
mail, return receipt requested, on the next business day following delivery to
the delivery service if sent by a recognized overnight delivery service (with
charges prepaid) or when received if delivered by hand. Any such notice,
request, demand or communication shall be addressed or delivered as follows,
or to such other addresses as the parties may designate by like notice:
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If to Task:
▇▇▇▇▇ Task
▇ ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to TPR:
The Princeton Review, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to:
Patterson, Belknap, ▇▇▇▇ & Tyler LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
14. Continuing Security Interest. This Pledge Agreement
shall create a continuing security interest in the Collateral and shall remain
in full force and effect until payment in full of all Secured Obligations, be
binding upon Task and his heirs, executors, administrators, successors and
assigns and inure, together with the rights and remedies of TPR hereunder, to
the benefit of TPR and each of its successors, transferees and assigns.
15. Governing Law. This Pledge Agreement shall be governed
by and construed in accordance with the laws of the State of New York without
regard to the choice of law provisions thereof. Venue in any action or
proceeding arising out of or relating to this Pledge Agreement shall be in any
state or federal court sitting in New York, New York, and Task hereby
irrevocably waives any objection he may have to the laying of venue of any
such action or proceeding in any such court and any claim he may have that any
such action or proceeding has been brought in an inconvenient forum. A final
judgment in any such action or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment or in any other
manner provided by law.
16. Attorney-in-Fact. Task hereby appoints TPR as Task's
attorney-in-fact and proxy for the purpose of carrying out the provisions of
this Pledge Agreement and taking any action and executing any instrument which
TPR may reasonably deem necessary or advisable to accomplish the purposes
hereof. The foregoing power of attorney is coupled with an interest and shall
be irrevocable prior to payment in full of the Secured Obligations. TPR shall
give Task prior written notice of any actions taken by TPR as attorney-in-fact
for Task.
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IN WITNESS WHEREOF, Task and TPR have caused this Pledge and
Security Agreement to be executed as of the day and year first above written.
THE PRINCETON REVIEW, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ Task
------------------------------- ----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Task
Chief Executive Officer
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SCHEDULE I
PLEDGED EQUITY
NUMBER OF CERTIFICATE
-------- -----------
ISSUER TYPE OF SECURITY SHARES NUMBER DATE
------ ---------------- ------ ------ ----
The Princeton Review, Inc. Common Stock 120,750 * *
* Certificate number to be provided at a later date. These shares are
currently represented by certificate number CB 19 representing 257,970 shares
of common stock. These shares will be represented by a new certificate issued
upon exchange of certificate CB 19.
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