EXHIBIT 10.25
FORM OF
STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT (this "Pledge Agreement") dated as of the ___ day of
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_______, ____, made by ________________, an individual (the "Pledgor"), in favor
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of ESPERION THERAPEUTICS, INC., a Delaware corporation (the "Lender").
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W I T N E S S E T H:
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WHEREAS, the Lender has agreed to make a loan (the "Loan") to the Pledgor
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on the terms set forth in and subject to a Promissory Note dated as of even date
herewith by and between the Lender and the Pledgor (as same may be amended,
supplemented or otherwise modified from time to time, the "Note"); and
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WHEREAS, it is a condition precedent to the obligation of the Lender to
make the Loan that the Pledgor execute and deliver this Pledge Agreement
granting to the Lender as security for the Loan and the Pledgor's obligations
under the Note, a first priority security interest in certain of the Pledgor's
property.
NOW THEREFORE, in construction of the premises and to induce the Lender to
make the Loan and for other valuable consideration, the Pledgor hereby agrees
with the Lender as follows:
1. Definitions: When used herein, the terms set forth below shall be
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defined as follows:
(a) "Obligations" means any and all indebtedness, obligations and
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liabilities of the Pledgor to the Lender of any kind or nature arising out of or
in connection with the Note and/or this Pledge Agreement.
(b) "Collateral" means the Pledgor's capital stock interests in the
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Lender, whether now owned or hereafter acquired, including, but not limited to,
_______ shares of Common Stock, $.001 par value per share, of the Lender
represented by stock Certificate No. ___, together with all certificates,
options, rights, dividends or other distributions in respect thereof, and any
and all proceeds of the foregoing.
(c) "Event of Default" shall have the meaning given it in the Note.
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2. Pledge of Collateral: To secure the prompt and complete payment
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and performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations, the Pledgor hereby pledges, assigns, and
transfers to the Lender, grants to the Lender a continuing security interest in
and to, all of the Pledgor's right, title and interest in and to the Collateral.
The Pledgor hereby delivers to the Lender the certificate evidencing the
Collateral. Concurrently with the delivery to the Lender of the certificate
representing the Collateral, the Pledgor has delivered an undated stock power
covering such certificate, duly executed in blank by the Pledgor.
3. Representations, Warranties and Covenants: The Pledgor hereby
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represents, warrants and covenants that (a) he shall defend, at his cost, any
action, proceeding or claim affecting the Collateral, (b) he is the sole
legal, record and beneficial owner of, and has good and valid title to, the
Collateral, and that the Collateral is and will continue to be free and clear of
all security interests, liens and encumbrances and rights and claims of others
except in favor of the Lender, (c) he has the power and authority to execute,
deliver and perform the Note and this Pledge Agreement, (d) he shall promptly
pay all taxes, assessments, fees and other public or private charges when levied
or assessed against any Collateral, the Note or this Pledge Agreement, (e) he
has duly executed and delivered the Note and this Pledge Agreement, and the Note
and this Pledge Agreement constitute the legal, valid and binding obligations of
the Pledgor, enforceable against the Pledgor in accordance with their respective
terms, and (f) all of the shares of capital stock constituting a part of the
Collateral have been duly and validly issued and are fully paid and non-
assessable.
4. Limitations on Duties of the Lender: The Lender shall be under no
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duty to (a) collect or protect the Collateral or any proceeds thereof or give
any notice with respect thereto, (b) preserve the right of the Pledgor with
respect to the Collateral against prior parties, (c) preserve rights against any
parties to any instrument or chattel paper that may be a part of the Collateral,
(d) sell or otherwise realize upon the Collateral, or (e) seek payment of the
Obligations from any particular source. Without limiting the generality of the
foregoing, the Lender shall not be obligated to take any action in connection
with any conversion, call, redemption, retirement, or any other event relating
to any of the Collateral.
5. Voting Rights; Distributions: So long as no Event of Default has
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occurred, the Pledgor shall be entitled to (a) excercise all voting, consensual,
managerial and other rights in connection with the Collateral, and (b) take
control of, receive and retain all distributions made by the Lender in
connection with the Collateral.
6. Remedies: Upon the occurrence of an Event of Default, all
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Obligations shall immediately become due and payable without demand or notice of
any kind, and the Lender may, in addition to such other remedies provided
herein, in the Note or by law or otherwise (a) transfer the whole or any part of
the Collateral into the name of the Lender or the name of its nominee and
exercise all voting, consensual, managerial and other rights in connection with
the Collateral, (b) take control of, receive and retain all distributions made
by the Lender in connection with the Collateral, (c) bring legal action against
the Pledgor without notice, and (d) take possession of the Collateral and sell,
assign and/or give options to purchase all on any part thereof in one or more
parcels upon any exchange or at public or private sale at the option of the
Lender at any time or times, without advertisment or demand upon or notice to
the Pledgor or any other person or entity (all of which are hereby waived),
except such notice as is required by applicable statute and cannot be waived,
for cash, upon credit or for other property, for immediate or future delivery,
at such price or prices and upon such terms as the Lender shall, in its sole
discretion, deem commercially reasonable, with the right on the part of the
Lender or its nominee to become the purchaser thereof at any such sale (unless
prohibited by statute), free from any equity of redemption and all other claims,
and, after deducting all legal and other expenses for maintaining or selling the
Collateral and all reasonable attorneys' fees, legal or other expenses for
collection, sale and delivery, to apply the residue to the proceeds of such sale
or sales to pay (or hold as a reserve against) all Obligations. The Lender shall
have the right to take any action it deems appropriate without the necessity of
resorting to any Collateral securing the Note. Any notice to be given to the
Pledgor shall be sufficiently served for all purposes if placed in the mail
addressed to or left upon the premises at the address noted in section 8(i)
below, and all time for service or delivery of any notice in accordance with any
statute shall be deemed to be commercially reasonable if sent or served five (5)
days before the event. Notwithstanding the foregoing, the Pledgor recognizes
that the Lender may be unable to effect a public sale of all or a part of the
Collateral and may be compelled to resort to one or more private sales to a
restricted group of purchasers who will be obligated to agree, among other
things, to acquire the Collateral for their own account, for investment and not
with a view to the distribution or resale thereof.
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The Pledgor acknowledges that any such private sales may be at prices and on
terms less favorable to the Lender than those of public sales, and agrees that
such private sales shall be deemed to have been made in a commercially
reasonable manner and that the Lender has no obligation to delay the sale of any
Collateral to permit the Lender to register it for public sale under the
Securities Act of 1933. Notwithstanding anything contained herein to the
contrary, the Lender shall only be entitled to proceed against the Collateral
and enforce its rights therein upon the occurrence of an Event of Default and,
in such case, only to the extent of the outstanding Obligations.
7. Attorney-in-Fact: The Pledgor hereby appoints the Lender, with full
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power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Pledgor and in the
name of the Pledgor or in its own name, from time to time in the Lender's
discretion, for the purpose of carrying out the terms of this Pledge Agreement,
after the occurrence of an Event of Default, to take any and all appropriate
action and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Pledge Agreement.
8. Miscellaneous: This Pledge Agreement is subject to the following
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additional provision:
(a) The Pledgor hereby forever waives presentment, demand, protest,
notice of protest and notice of dishonor of the Note and the indebtedness
evidenced thereby and this Pledge Agreement. No delay or failure by the Lender
in the exercise of any right or remedy under the Note or this Pledge Agreement
shall constitute a waiver thereof, and no single or partial exercise by the
Lender of any right or remedy under the Note or this Pledge Agreement shall
preclude other or further exercise thereof or the exercise of any other right
or remedy. No modification or waiver of the provisions hereof shall be effective
unless in writing and signed by the Lender, nor shall any waiver be applicable
except in the specific instance or matter for which given.
(b) If any provision of this Pledge Agreement is invalid or
unenforceable in any jurisdiction such provision shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability, but the
foregoing shall not render invalid or unenforceable in such jurisdiction the
remainder of this Pledge Agreement or the remainder of such provision or affect
the validity or unenforceability of any provision of this Pledge Agreement in
any other jurisdiction.
(c) The Pledgor hereby agrees to pay, indemnify and hold the Lender
harmless from and against all expenses, liabilities and costs, including,
without limitation, reasonable attorney's fees and expenses, incurred by the
Lender in the protection, exercise or enforcement of its interests, rights,
powers or remedies under the Note and hereunder.
(d) This Pledge Agreement shall be binding upon and unsure to the
benefit of the Lender and the Pledgor, and their respective heirs, executors,
personal respectives, successors and permitted assign, provided the Pledgor may
not assign any of his rights or obligations hereunder without the prior written
consent of the Lender.
(e) This Pledge Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, without giving effect to the
principles of conflicts of law thereof. The Pledgor hereby submits himself for
the sole purpose of this Pledge Agreement and any controversy arising hereunder
to the exclusive jurisdiction of the courts in the State of Michigan, and waives
any objection (on the grounds of lack of jurisdiction or forum non conveniens,
or otherwise) to the exercise of such jurisdiction over him by any court in the
State of Michigan.
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(f) The section headings are included for convenience only and shall
not be deemed to be part of this Pledge Agreement.
(g) At any time and from time to time, upon the request of the Lender,
at the sole expense of the Pledgor, the Pledgor will promptly and duly execute
and deliver such further instruments and documents and take such further action
as the Lender may reasonably request for the purpose of obtaining and preserving
the full benefits of the Note and this Pledge Agreement and of the rights and
powers therein and herein granted, including, without limitation, for the
purpose of perfecting the Lender's security interest in the Collateral.
(h) This Pledge Agreement and the grant of the security interest
contained herein is for collateral purposes only and the Lender shall not, by
virtue of this Pledge Agreement, by its receipt of distributions on account of
the Collateral, or by its exercise of any rights hereunder, be deemed to have
any liability for the debts, obligations or liabilities of the Pledgor on
account of the Collateral.
(i) All notices, requests and demands to or upon the Pledgor or the
Lender under or in connection with this Pledge Agreement or the Note to be
effective shall be in writing and shall be sent by reputable overnight courier
service or certified mail, return receipt requested, to the following addresses
(or such other address as shall be designated in writing to the other party by
written notice):
If to the Pledgor:
If to the Lender:
with a copy to:
IN WITNESS WHEREOF, the pledgor has duly executed and delivered this
Pledge Agreement the day and year first above written.
WITNESS: PLEDGOR:
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Name:
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