Exhibit 7(e)
PLEDGE AGREEMENT
Pledgor: Forward Ventures III, L.P.
Address: 00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Date: December ___, 1996
THIS PLEDGE AGREEMENT ("Pledge Agreement"), dated the above date, is
entered into at between SILICON VALLEY BANK ("Silicon"), whose address is 0000
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000, and the pledgor named above
("Pledgor"), whose address is set forth above.
1. PLEDGE OF STOCK. Pledgor shall concurrently deliver to Silicon the
stock certificates and other securities listed on Exhibit A hereto, together
with duly executed instruments of assignment thereof to Silicon (which, together
with all replacements and substitutions therefor are hereinafter referred to as
the "Securities"). Pledgor hereby pledges to Silicon and grants Silicon a
security interest in the Securities, and all rights and remedies relating to, or
arising out of, any and all of the foregoing, and all proceeds thereof
(collectively, the "Collateral") to secure the payment and performance of all
debts, duties, obligations, liabilities, representations, warranties and
guaranties of Pledgor to Silicon, heretofore, now, or hereafter made, incurred
or created, of every kind and nature (collectively, the "Obligations"),
including, but not limited to, those arising under the Loan and Security
Agreement of even date herewith (as amended from time to time, the "Loan
Agreement"). Any and all stock dividends, rights, warrants, options, puts,
calls, conversion rights and other securities and any and all property and money
distributed or delivered with respect to the Securities or issued upon the
exercise of any puts, calls, conversion rights, options, warrants or other
rights included in or pertaining to the Securities shall be included in the term
"Securities" as used herein and shall be subject to this Pledge Agreement, and
Pledgor shall deliver the same to Silicon immediately upon receipt thereof
together with any necessary instruments of transfer; provided, however, that
until an Event of Default (as hereinafter defined) shall occur, Pledgor may
retain any dividends paid in cash or its equivalent, with respect to any stock
included in the Securities and any interest paid with respect to any bonds,
debentures or other evidences of indebtedness included in the Securities.
Pledgor hereby acknowledges that the acceptance of the pledge of the Securities
by Silicon shall not constitute a commitment of any kind by Silicon to permit
Pledgor to incur Obligations.
2. VOTING AND OTHER RIGHTS. Pledgor shall have the right to exercise all
voting rights with respect to the Securities, provided no Event of Default (as
hereinafter defined) has occurred. Upon the occurrence of any Event of Default,
Silicon shall have the right (but not any obligation) to exercise all voting
rights with respect to the Securities. Provided no Event of Default has
occurred, Pledgor shall have the right to exercise all puts, calls, straddles,
conversion rights, options, warrants, and other rights and remedies with respect
to the Securities, provided Pledgor obtains the prior written consent of Silicon
thereto. Silicon shall have no responsibility or liability whatsoever for the
exercise of, or failure to exercise, any puts, calls, straddles, conversion
rights, options, warrants, rights to vote or consent, or other rights with
respect to any of the Securities. Upon the occurrence of any Event of Default,
Silicon shall have the right from time to
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time to transfer all or any part of the Securities to Silicon's own name or the
name of its nominee.
3. REPRESENTATIONS AND WARRANTIES. Pledgor hereby represents and
warrants to Silicon that Pledgor now has, and throughout the term of this
Agreement will at all times have, good title to the Securities and the other
Collateral, free and clear of any and all security interests, liens and claims
of any kind whatsoever.
4. EVENTS OF DEFAULT. If any one or more of the following events shall
occur, any such event shall constitute an Event of Default and Pledgor shall
provide Silicon with immediate notice thereof: (a) Any warranty,
representation, statement, report or certificate made or delivered to Silicon by
Pledgor or any of the Pledgor's officers, employees or agents now or hereafter
is incorrect, false, untrue or misleading in any material respect; or (b) an
Event of Default shall occur under the Loan Agreement.
5. REMEDIES. If an Event of Default shall occur, Pledgor shall give
immediate written notice thereof to Silicon. Upon the occurrence of an Event of
Default, and at any time thereafter, Silicon shall have the right, without
notice to or demand upon Pledgor, to exercise any one or more of the following
remedies: (a) accelerate and declare all or any part of the Obligations to be
immediately due, payable and performable, notwithstanding any deferred or
installment payments allowed by any agreement or instrument evidencing or
relating to any of the same; (b) sell or otherwise dispose of the Securities,
and other Collateral, at a public or private sale for cash, or other property,
or on credit, with the authority to adjourn or postpone any such sale from time
to time without notice other than oral announcement at the time scheduled for
sale. Silicon may directly or through any affiliate purchase the Securities,
and other Collateral, at any such public disposition, and if permissible under
applicable law, at any private disposition. Pledgor and Silicon hereby agree
that it shall conclusively be deemed commercially reasonable for Silicon, in
connection with any sale or disposition of the Securities, to impose
restrictions and conditions as to the investment intent of a purchaser or
bidder, the ability of a purchaser or bidder to bear the economic risk of an
investment in the Securities, the knowledge and experience in business and
financial matters of a purchaser or bidder, the access of a purchaser or bidder
to information concerning the issuer of the Securities, as well as legend
conditions and stop transfer instructions restricting subsequent transfer of the
Securities, and any other restrictions or conditions which Silicon believes to
be necessary or advisable in order to comply with any state or federal
securities or other laws. Pledgor acknowledges that the foregoing restrictions
may result in fewer proceeds being received upon such sale than would otherwise
be the case. Pledgor hereby agrees to provide to Silicon any and all
information required by Silicon in connection with any sales of Securities by
Silicon hereunder. If, after the occurrence of any Event of Default, Rule 144
promulgated by the Securities and Exchange Commission (or any other similar
rule) is available for use by Silicon in connection with the sales of any
Securities hereunder, Pledgor agrees not to utilize Rule 144 in the sale of any
securities held by Pledgor of the same class as the Securities, without the
prior written consent of Silicon. Any and all attorneys' fees, expenses, costs,
liabilities and obligations incurred by Silicon in connection with the foregoing
shall be added to and become a part of the Obligations and shall be due from
Pledgor to Silicon upon demand.
6. REMEDIES, CUMULATIVE; NO WAIVER. The failure of Silicon to enforce
any of the provisions of this Agreement at any time or for any period of time
shall not be construed to be a waiver of any such provision or the right
thereafter to enforce the same. All remedies hereunder shall be cumulative and
shall be in addition to all rights, powers and remedies given to Silicon by law.
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7. TERM. This Agreement and Silicon's rights hereunder shall continue in
full force and effect until all of the Obligations have been fully paid,
performed and discharged and the Loan Agreement and all other agreements between
Pledgor and Silicon have terminated. Upon termination, Silicon shall return the
Collateral to Pledgor, with any necessary instruments of transfer.
8. REVIVOR. If any payment made on any of the Obligations shall for any
reason be required to be returned by the Silicon, whether on the ground that
such payment constituted a preference or for any other reason, then for purposes
of this Agreement, and notwithstanding any prior termination of this Agreement,
such payment on the Obligations shall be treated as not having been made, and
this Agreement shall in all respects be effective with respect to the
Obligations as though such payment had not been made; and if the Collateral has
been released or returned to Pledgor, then Pledgor shall return the Collateral
to Silicon, to be held and dealt with in accordance with the terms of this
Agreement.
9. GENERAL PROVISIONS. This Agreement and the documents referred to
herein are the entire and only agreements between Pledgor and Silicon with
respect to the subject matter hereof, and all representations, warranties,
agreements, or undertakings heretofore or contemporaneously made, with respect
to the subject matter hereof, which are not set forth herein or therein, are
superseded hereby. The terms and provisions hereof may not be waived, altered,
modified, or amended except in a writing executed by Pledgor and Silicon. All
rights, benefits and privileges hereunder shall inure to the benefit of and be
enforceable by Silicon and its successors and assigns and shall be binding upon
Pledgor and its successors and assigns; provided that Pledgor may not transfer
any of its rights hereunder without the prior written consent of Silicon.
Paragraph headings are used herein for convenience only. Pledgor acknowledges
that the same may not describe completely the subject matter of the applicable
paragraph, and the same shall not be used in any manner to construe, limit,
define or interpret any term or provision hereof. Pledgor shall upon demand
reimburse Silicon for all costs, fees and expenses (including without limitation
attorneys' fees, whether or not suit be brought), which are incurred by Silicon
in connection with, or arising out of, this Agreement. This Agreement and all
acts and transactions pursuant hereto and the rights and obligations of the
parties hereto shall be governed, construed, and interpreted in accordance with
the internal laws (and not conflict of laws rules) of the State of California.
Pledgor hereby agrees that all actions or proceedings relating directly or
indirectly hereto may, at the option of Silicon, be litigated in courts located
within said State, and Pledgor hereby expressly consents to the jurisdiction of
any such court and consents to the service of process in any such action or
proceeding by personal delivery or by certified or registered mailing directed
to Pledgor at its last address known to Silicon.
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10. MUTUAL WAIVER OF RIGHT TO JURY TRIAL. SILICON AND PLEDGOR EACH HEREBY
WAIVE THE RIGHT TO TRAIL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING
OUT OF, OR IN ANY WAY RELATING TO: (i) THIS AGREEMENT; OR (ii) ANY OTHER PRESENT
OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN SILICON AND PLEDGOR; OR (iii) ANY
CONDUCT, ACTS OR OMISSIONS OF SILICON OR PLEDGOR OR ANY OF THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH
SILICON OR PLEDGOR; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE.
PLEDGOR:
FORWARD VENTURES III, L.P., a Delaware
limited partnership
By: Forward III Associates, LLC, its general
partner
By /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------
Managing Member
By /s/ Xxxx Xxxxxx
---------------------------------------
Managing Member
SILICON:
SILICON VALLEY BANK
By /s/ X. Xxxx
--------------------------------------
Senior Vice President
EXHIBIT A
233,663 Shares of common stock Triangle Pharmaceuticals, Inc. represented by
Share Certificate No. ________________.
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