Exhibit 10.8
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT dated February 21, 2002, between
Metropolitan Health Networks, Inc., a Florida corporation with an address at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Pledgor"), and Pinnacle Investment Partners, L.P., a New York limited
partnership with an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (the "Secured Creditor").
WHEREAS, the Secured Creditor has agreed to make a loan (the "Loan") to
the Pledgor in the aggregate principal amount of $500,000.00 for a term of 120
days, which will be evidenced by a Secured Promissory Note, dated the date
hereof, by Pledgor to the order of the Secured Creditor in the principal amount
of the Loan (the "Note"); and
WHEREAS, it is a condition precedent to the making of the Loan by the
Secured Creditor that the Pledgor shall have executed and delivered to the
Secured Creditor a pledge and security agreement providing for the pledge and
grant to the Secured Creditor of a security interest in the Collateral, as
defined below.
NOW, THEREFORE, in consideration of the premises and the agreements
herein and in order to induce the Secured Creditor to make the Loan, the Pledgor
hereby agrees with the Secured Creditor as follows:
SECTION 1. DEFINITIONS.
(a) All terms used in this Agreement which are defined in Article 9 of
the Uniform Commercial Code (the "Commercial Code") currently in effect in the
State of New York and which are not otherwise defined herein shall have the same
meanings herein as set forth therein.
(b) The terms "register," "registered," and "registration" refer to a
registration under the Securities Act of 1933, as amended (the "Securities
Act"), effected by preparing and filing a registration statement or similar
document in compliance with the Securities Act, and the declaration or ordering
of effectiveness of such registration statement, document or amendment thereto.
(c) The term "Registrable Securities" means the Pledged Collateral, the
35,000 shares of Pledgor's common stock issued to Secured Creditor as an
origination fee and any securities of the Pledgor or securities of any successor
corporation issued as or issuable upon the conversion or exercise of any
warrant, right or other security that is issued as a dividend or other
distribution with respect to, or in exchange for, or in replacement of, the
Registrable Securities.
(d) The term "Holder of Registrable Securities" means the Secured
Creditor and any permitted assignee of registration rights.
SECTION 2. PLEDGE AND GRANT OF SECURITY INTEREST. As collateral
security for all of the Obligations (as defined in Section 3 hereof), the
Pledgor hereby pledges, assigns and grants to the Secured Creditor a continuing
security interest in the following collateral (the "Pledged Collateral"):
(a) 700,000 restricted shares of Pledgor's common stock, which shares,
together with stock powers executed in blank, shall be delivered to and placed
in escrow with the Secured Creditor's counsel, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, as promptly
as possible, but in no case later than within 30 days of the date hereof; and
(b) all proceeds of any and all of the foregoing; in each case,
howsoever its interest therein may arise or appear (whether by ownership,
security interest, claim or otherwise).
SECTION 3. SECURITY FOR OBLIGATIONS. The security interest created
hereby in the Pledged Collateral constitutes continuing collateral security for
all of the following obligations, whether now existing or hereafter incurred
(the "Obligations"):
(a) the prompt payment by the Pledgor, as and when due and payable, of
all amounts owing by it in respect of the Loan; and
(b) the due performance and observance by the Pledgor of all of its
other obligations from time to time existing under this Agreement and the Note
of even date herewith.
SECTION 4. COVENANT TO REGISTER.
(a) The Pledgor shall use its best efforts to prepare and file a
registration statement within 30 days of the date hereof and cause such
registration statement to become effective as soon as possible, but no later
than 120 days from the date of this Agreement.
(b) The Pledgor may suspend the effectiveness of any registration
effected pursuant to this Section 4 in the event and for such period of time as,
such a suspension is required by the rules and regulations of the Securities and
Exchange Commission (the "SEC"). The Pledgor shall use its best efforts to cause
such suspension to terminate at the earliest possible date.
(c) If a registration statement covering all Registrable Securities is
not filed within 30 days of the date hereof or effective within 120 days of the
date hereof (the "Target Date"), the Pledgor shall pay Secured Creditor as
liquidated damages an amount equal to 2% per month of the Loan for each 30 day
period following the Target Date until such time as the registration statement
is filed or declared effective, as the case may be. Such payment shall be made
to the Pledgor by cashier's check or wire transfer in immediately available
funds to such account as shall be designated in writing by the Pledgor.
(d) Whenever required under this Section 4 to effect the registration
of any Registrable Securities, the Pledgor shall, as expeditiously as reasonably
possible:
(i) Prepare and file with the SEC a registration statement or
amendment thereto with respect to such Registrable Securities and use
its best efforts to cause such registration to become effective, and
keep such registration statement effective for so long as any holder of
Registrable Securities desires to dispose of the securities covered by
such registration statement; PROVIDED, HOWEVER, that in no event shall
the Pledgor be required to keep the Registration statement effective
for a period greater than three years from the date hereof;
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(ii) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement
and notify the holders of the filing and effectiveness of such
registration statement and any amendments or supplements;
(iii) Furnish to each holder of Registrable Securities such
numbers of copies of a current prospectus, including a preliminary
prospectus, conforming with the requirements of the Securities Act,
copies of the registration statement any amendment or supplement to any
thereof and any documents incorporated by reference therein, and such
other documents as such holder of Registrable Securities may reasonably
require in order to facilitate the disposition of Registrable
Securities owned by such holder of Registrable Securities;
(iv) Use its best efforts to register and qualify the
securities covered by such registration statement under such other
securities or "Blue Sky" laws of such jurisdictions as shall be
reasonably requested by the holder of Registrable Securities;
(v) Notify each holder of Registrable Securities immediately
of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an
untrue statement of material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and
use its best efforts to promptly update and/or correct such prospectus.
SECTION 5. OTHER COVENANTS AS TO THE PLEDGED COLLATERAL. So long as any
of the Obligations shall remain outstanding, the Pledgor will, unless the
Secured Creditor shall otherwise consent in writing:
(a) keep adequate records concerning the Pledged Collateral and permit
the Secured Creditor or any agents or representatives thereof at any reasonable
time and from time to time to examine and make copies of and abstracts from such
records;
(b) at any time and from time to time, promptly execute and deliver all
further instruments and documents and take all further action that may be
reasonably necessary or desirable or that the Secured Creditor may request in
order to (i) perfect and protect the security interest created hereby; (ii)
enable the Secured Creditor to exercise and enforce their rights and remedies
hereunder in respect of the Pledged Collateral; or (iii) otherwise effect the
purposes of this Agreement; and
(c) not create or suffer to exist any lien, security interest or other
charge or encumbrance upon or with respect to any Pledged Collateral except for
the security interest created hereby.
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SECTION 6. ADDITIONAL PROVISIONS CONCERNING THE PLEDGED COLLATERAL.
(a) The Pledgor hereby authorizes the Secured Creditor to file, without
the signature of the Pledgor where permitted by law, one or more financing or
continuation statements, and amendments thereto, relating to the Pledged
Collateral.
(b) The Pledgor hereby irrevocably appoints the Secured Creditor the
Pledgor's attorney-in-fact and proxy, with full authority in the place and stead
of the Pledgor and in the name of the Pledgor or otherwise, from time to time in
the Secured Creditor's discretion, to take any action and to execute any
instrument which the Secured Creditor may deem necessary or advisable to
accomplish the purpose of this Agreement.
SECTION 7. REMEDIES UPON DEFAULT. If any Event of Default under the
Note shall have occurred and be continuing:
(a) The Secured Creditor may, exercise in respect of the Pledged
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to them, all of the rights and remedies of a secured party
on default under the Commercial Code then in effect in the State of New York,
and without limiting the generality of the foregoing and upon five business days
notice, sell the Pledged Collateral or any part thereof.
(b) All cash proceeds received by the Secured Creditor in respect of
any sale of, collection from, or other realization upon, all or any part of the
Pledged Collateral may, in the discretion of the Secured Creditor, be held by
the Secured Creditor as collateral for, and/or then or at any time thereafter
applied in whole or in part by the Secured Creditor against, all or any part of
the Obligations PRO RATA as to the principal amount of the Loan and the Note.
Any surplus of such cash or cash proceeds held by the Secured Creditor and
remaining after payment in full of all of the Obligations shall be paid over to
the Pledgor or to such person as may be lawfully entitled to receive such
surplus.
(c) In the event that the proceeds of any such sale, collection or
realization are insufficient to pay all amounts to which the Secured Creditor is
legally entitled, the Pledgor shall remain liable for the deficiency and the
Secured Creditor shall retain all rights to collect on such Obligations provided
by applicable law.
SECTION 8. NOTICES, ETC. All notices and other communications provided
for hereunder shall be in writing and shall be mailed, telegraphed or delivered,
if to the Pledgor, to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; and if to the Secured Creditor, to it at c/o Hornblower &
Weeks, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; or as to any of
such parties at such other address as shall be designated by such parties in a
written notice to the other parties hereto complying as to delivery with the
terms of this Section 7. All such notices and other communications shall be
effective (i) if mailed, when deposited in the mails, (ii) if telegraphed, when
delivered to the telegraph company, or (iii) if delivered, upon delivery.
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SECTION 9. MISCELLANEOUS.
(a) No amendment of any provisions of this Agreement shall be effective
unless it is in writing and signed by the Pledgor and the Secured Creditor, and
no waiver of any provision of this Agreement, and no consent to any departure by
the Pledgor therefrom, shall be effective unless it is in writing and signed by
the Secured Creditor, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
(b) No failure on the part of the Secured Creditor to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The rights and
remedies of the Secured Creditor provided herein are cumulative and are in
addition to, and not exclusive of, any rights or remedies provided by law.
(c) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability with invalidating the
remaining portions hereof or thereof or affecting the validity or enforceability
of such provision on any other jurisdiction.
(d) This Agreement shall create a continuing security interest in the
Pledged Collateral and shall (i) remain in full force and effect until the
payment in full or release of the obligations and (ii) be binding on the Pledgor
and its assigns and shall inure, together with all rights and remedies of the
Secured Creditor hereunder, to the benefit of the Secured Creditor and its
successors, transferees and assigns.
(e) Upon the satisfaction in full of the Obligations, (i) this
Agreement and the security interest created hereby shall terminate and all
rights to the Pledged Collateral shall revert to the Pledgor, and (ii) the
Secured Creditor will, upon the Pledgor's request and at the Pledgor's expense,
(A) return to the Pledgor such of the Pledged Collateral as shall not have been
sold or otherwise disposed of or applied pursuant to the terms hereof and (B)
execute and deliver to the Pledgor such documents as the Pledgor shall
reasonably request to evidence such termination.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, except as required by mandatory
provisions of law and except to the extent that the validity and perfection or
the perfection and the effect of perfection or non-perfection of the security
interest created hereby, or remedies hereunder, in respect of any particular
Pledged Collateral are governed by the law of a jurisdiction other than the
State of New York.
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be
executed and delivered as of the date first above written.
METROPOLITAN HEALTH NETWORKS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President and CEO
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