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Exhibit 10.3
BIOMATRIX, INC.
STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement (this "Agreement") is made as of this
_____ day of ________, 199_ by and between _____________ (the "Pledgor"), and
BIOMATRIX, INC., a Delaware corporation (the "Company").
WHEREAS, the Company has agreed to sell to the Pledgor, and the
Pledgor has agreed to purchase from the Company, ___________ (_____) shares
(the "Shares") of the Company's Common Stock, $.0001 par value per share, upon
the terms and conditions set forth in that certain Restricted Stock Purchase
Agreement, dated as of the date hereof, by and between the Company and the
Pledgor (the "Restricted Stock Purchase Agreement");
WHEREAS, the Restricted Stock Purchase Agreement provides that the
Pledgor shall make payment of the aggregate purchase price for the Shares by
delivering to the Company a promissory note (the "Note"), the principal amount
of which shall be equal to such aggregate purchase price; and
WHEREAS, the Pledgor has agreed to execute and deliver this Agreement
as a condition to the Company's sale of the Shares to the Pledgor.
NOW, THEREFORE, in consideration of the premises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Pledge of Stock, etc.
(a) The Pledgor hereby pledges, assigns, grants a security
interest in, and delivers to the Company, to secure the Obligations (as defined
below), all of his right, title and interest in and to the Shares to be held by
the Company subject to the terms and conditions hereinafter set forth. The
certificates for such Shares, accompanied by stock powers or other appropriate
instruments of assignment thereof duly executed in blank by the Pledgor, are
being delivered to the Company contemporaneously herewith and shall be held by
the Secretary of the Company. The Pledgor also hereby pledges, assigns, grants
a security interest in, and delivers to the Company, to secure the Obligations,
all of his right, title and interest in and to any and all sums or other
property (including, without limitation, any additional shares of the capital
stock of the Company and any shares of the capital stock of any issuer) paid or
distributed upon or with respect to any of the shares of the capital stock of
the Company or any other issuer pledged hereunder from time to time, regardless
of whether any such sums or other property are paid or distributed by dividend
or redemption, upon liquidation or dissolution, or otherwise.
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(b) Upon the Pledgor's repayment of any part of the Obligations,
the Company agrees to release the pledge pursuant to this Agreement of the pro
rata portion of the Shares corresponding to the proportionate amount of the
Obligations that have been repaid by the Pledgor.
2. Definitions. The following terms shall have the following
meanings:
(a) "Event of Default" shall have the meaning ascribed to such
term in the Note.
(b) "Stock." The Shares, together with any additional shares of
capital stock of any issuer pledged to the Company from time to time pursuant
to Section 1 hereof.
(c) "Stock Collateral." The property at any time pledged to the
Company hereunder (whether described herein or not) and all income therefrom,
increases therein and proceeds thereof, but excluding from the definition of
"Stock Collateral" any income, increases or proceeds received by the Pledgor to
the extent expressly permitted by Section 6.
3. Security for Obligations. This Agreement and the security
interest in and pledge of the Stock Collateral hereunder are made with and
granted to the Company as security for the payment and performance in full of
all of the obligations of the Pledgor under the Note (all of such obligations
being collectively referred to herein as the "Obligations").
4. Liquidation, Recapitalization, etc. Any sums or other
property (including, without limitation, any shares of the capital stock of any
issuer, including the Company, or any securities exchangeable for or
convertible into shares of such capital stock) paid or distributed upon or with
respect to any of the Stock, whether by dividend or redemption or upon the
liquidation or dissolution of the issuer thereof or otherwise, shall, except to
the limited extent provided in Section 6, be paid over and delivered to the
Company to be held by the Company, pursuant to the terms of this Agreement, as
security for the payment and performance in full of all of the Obligations. In
the event that, pursuant to the recapitalization or reclassification of the
capital of the issuer thereof or pursuant to the reorganization thereof, any
distribution of capital shall be made on or in respect of any of the Stock or
any property shall be distributed upon or with respect to any of the Stock, the
property so distributed shall be delivered to the Company to be held by it as
security for the Obligations. Except to the limited extent provided in Section
6, all sums of money and property paid or distributed in respect of the Stock,
whether as a dividend or upon such a liquidation, dissolution, recapitalization
or reclassification or otherwise, that are received by the Pledgor
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shall, until paid or delivered to the Company, be held in trust for the Company
as security for the payment and performance in full of all of the Obligations.
5. Warranty of Title; Authority. The Pledgor hereby represents
and warrants that: (a) the Pledgor has good and marketable title to the Shares,
subject to no pledges, liens, security interests, charges, options,
restrictions or other encumbrances except the pledge and security interest
created by this Agreement, and except for any restrictions imposed by the
Securities Act of 1933, as amended (the "Securities Act"), (b) the Pledgor has
full power, authority and legal right to execute, deliver and perform its
obligations under this Agreement and to pledge and grant a security interest in
all of the Stock Collateral pursuant to this Agreement, and (c) the execution,
delivery and performance of this Agreement by the Pledgor and the pledge of and
grant of a security interest in the Stock Collateral hereunder do not
contravene any law, rule or regulation or any provision of the charter or
by-laws of the issuer or issuers thereof or of any judgment, decree or order of
any tribunal or of any agreement or instrument to which the Pledgor is a party
or by which he or any of his property is bound or affected or constitute a
default thereunder. The Pledgor further warrants that he will have good and
marketable title to any and all Stock Collateral hereafter pledged to the
Company hereunder, subject to no pledges, liens, security interests, charges,
options, restrictions or other encumbrances except the pledge and security
interest created by this Agreement, and except for any restrictions imposed by
the Securities Act. The Pledgor covenants that he shall defend the Company's
rights and security interest in such Stock Collateral against the claims and
demands of any and all third parties. The Pledgor further covenants that he
shall not enter into any agreement that conflicts with this Agreement.
6. Dividends, Voting, etc., Prior to Maturity. So long as no
Event of Default shall have occurred and be continuing, the Pledgor shall be
entitled to receive all cash dividends paid in respect of the Stock, to vote
the Stock and to give consents, waivers and ratifications in respect of the
Stock; provided, however, that no vote shall be cast or consent, waiver or
ratification given by the Pledgor if the effect thereof would impair any of the
Stock Collateral. All such rights of the Pledgor to receive cash dividends
shall cease in case an Event of Default shall have occurred and be continuing.
All such rights of the Pledgor to vote and give consents, waivers and
ratifications with respect to the Stock shall, at the Company's option, as
evidenced by the Company's notifying the Pledgor of such election, cease in
case an Event of Default shall have occurred and be continuing.
7. Remedies.
7.1. In General. If an Event of Default shall have
occurred and be continuing, the Company shall thereafter have the
following rights and remedies (to the extent permitted by applicable
law) in addition to the rights
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and remedies of a secured party under the Uniform Commercial Code of
the State of New Jersey, all such rights and remedies being
cumulative, not exclusive, and enforceable alternatively, successively
or concurrently, at such time or times as the Company deems expedient:
(a) if the Company so elects and gives notice of
such election to the Pledgor, the Company may vote any or all
shares of the Stock (whether or not the same shall have been
transferred into its name or the name of its nominee or
nominees) for any lawful purpose, including, without
limitation, if the Company so elects, for the liquidation of
the assets of the issuer thereof, and give all consents,
waivers and ratifications in respect of the Stock and
otherwise act with respect thereto as though it were the
outright owner thereof (the Pledgor hereby irrevocably
constituting and appointing the Company as his proxy and
attorney-in-fact, with full power of substitution, to do so);
(b) the Company may demand, xxx for, collect or
make any compromise or settlement the Company deems suitable
in respect of any Stock Collateral;
(c) the Company may sell, resell, assign and
deliver, or otherwise dispose of, any or all of the Stock
Collateral, for cash or credit or both and upon such terms, at
such place or places, at such time or times and to such
entities or other persons as the Company deems expedient, all
without demand for performance by the Pledgor or any notice or
advertisement whatsoever except as expressly provided herein
or as may otherwise be required by law; and
(d) the Company may cause all or any part of the
Stock held by it to be transferred into its name or the name
of its nominee or nominees.
7.2. Sale of Stock Collateral. In the event of any
disposition of the Stock Collateral as provided in clause (c) of
Section 7.1, the Company shall give to the Pledgor at least five
business days' prior written notice of the time and place of any
public sale of the Stock Collateral or of the time after which any
private sale or any other intended disposition is to be made. The
Pledgor hereby acknowledges that five business days prior written
notice of such sale or sales shall be reasonable notice. The Company
may enforce its rights hereafter without any other notice and without
compliance with any other condition precedent now or hereunder imposed
by statute, rule of law or otherwise (all of which are hereby
expressly waived by the Pledgor, to the fullest extent permitted by
law). The Company may buy any part or all of
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the Stock Collateral at any public sale and if any part or all of the
Stock Collateral is of a type customarily sold in a recognized market
or is of the type which is the subject of widely-distributed standard
price quotations, the Company may buy at private sale and may make
payments thereof by any means. The Company may apply the cash
proceeds actually received from any sale or other disposition to the
reasonable expenses of retaking, holding, preparing for sale, selling
and the like, to reasonable attorneys' fees, travel and all other
expenses which may be incurred by the Company in attempting to collect
the Obligations or to enforce this Agreement or in the prosecution or
defense of any action or proceeding related to the subject matter of
this Agreement, and then to the Obligations in such order or
preference as the Company may determine after proper allowance for
Obligations not then due. Only after such applications, and after
payment by the Company of any amount required by Section
12A:9-504(1)(c) of the Uniform Commercial Code of the State of New
Jersey, need the Company account to the Pledgor for any surplus.
7.3. The Pledgor's Agreements, etc. The Pledgor further
agrees to do or cause to be done all such other acts and things as may
be reasonably necessary to make any sales of any portion or all of the
Stock pursuant to this Section 7 valid and binding and in compliance
with any and all applicable laws (including, without limitation, the
Securities Act, the Securities Exchange Act of 1934, as amended, the
rules and regulations of the Securities and Exchange Commission
applicable thereto and all applicable state securities or "Blue Sky"
laws), regulations, orders, writs, injunctions, decrees or awards of
any and all courts, arbitrators or governmental instrumentalities,
domestic or foreign, having jurisdiction over any such sale or sales,
all at the Pledgor's expense. The Pledgor further agrees that a
breach of any of the covenants contained in this Section 7 will cause
irreparable injury to the Company, that the Company has no adequate
remedy at law in respect of such breach and, as a consequence, agrees
that each and every covenant contained in this Section 7 shall be
specifically enforceable against the Pledgor and the Pledgor hereby
waives and agrees not to assert any defenses against an action for
specific performance of such covenants.
8. Marshalling. The Company shall not be required to marshal any
present or future security for (including, but not limited to, this Agreement
and the Stock Collateral pledged hereunder), or guaranties of, the Obligations
or any of them, or to resort to such security or guaranties in any particular
order; and all of its rights hereunder and in respect to such security and
guaranties shall be cumulative and in addition to all other rights, however
existing or arising. To the extent that he lawfully may, the Pledgor hereby
agrees that he will not invoke any law relating to the marshalling of
collateral which might cause delay in or impede
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the enforcement of the Company's rights under this Agreement, and, to the
extent that he lawfully may, the Pledgor hereby irrevocably waives the benefits
of all such laws.
9. Pledgor's Obligations Not Affected. To the extent permitted
by law, the obligations of the Pledgor hereunder shall remain in full force and
effect without regard to, and shall not be impaired by (a) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or the like of the Pledgor; (b) any exercise or nonexercise, or any waiver, by
the Company of any right, remedy, power or privilege under or in respect of any
of the Obligations or any security therefor (including this Agreement); (c) any
amendment to or modification of any of the Obligations; (d) any amendment to or
modification of any instrument (other than this Agreement) securing any of the
Obligations; or (e) the taking of additional security for, or any guaranty of,
any of the Obligations or the release or discharge or termination of any
security or guaranty for any of the Obligations; whether or not the Pledgor
shall have notice or knowledge of any of the foregoing.
10. Transfer, etc., by the Pledgor. Without the prior written
consent of the Company, the Pledgor will not sell, assign, transfer or
otherwise dispose of, grant any option with respect to, or pledge or grant any
security interest in or otherwise encumber or restrict any of the Stock
Collateral or any interest therein, except for the pledge thereof and security
interest therein provided for in this Agreement.
11. Further Assurances. The Pledgor will do all such acts, and
will furnish to the Company all such financing statements, certificates, legal
opinions and other documents and will obtain all such governmental consents and
corporate approvals and will do or cause to be done all such other things as
the Company may reasonably request from time to time in order to give full
effect to this Agreement and to secure the rights of the Company hereunder, all
without any cost or expense to the Company. If the Company so elects, a
photocopy of this Agreement may at any time and from time to time be filed by
the Company as a financing statement in any recording office in any
jurisdiction.
12. Company's Exoneration. Under no circumstances shall the
Company be deemed to assume any responsibility for or obligation or duty with
respect to any part or all of the Stock Collateral of any nature or kind or any
matter or proceedings arising out of or relating thereto, other than (a) to
exercise reasonable care in the physical custody of the Stock Collateral and
(b) after an Event of Default shall have occurred and be continuing to act in a
commercially reasonable manner. The Company shall not be required to take any
action of any kind to collect, preserve or protect its or the Pledgor's rights
in the Stock Collateral or against other parties thereto. The Company's prior
recourse to any part or all of the Stock Collateral
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shall not constitute a condition of any demand, suit or proceeding for payment
or collection of any of the Obligations.
13. Overdue Amounts. Until paid, all amounts due and payable by
the Pledgor hereunder shall be a debt secured by the Stock Collateral and shall
bear, whether before or after judgment, interest at the rate of interest set
forth in the Note.
14. No Waiver, etc. No act, failure or delay by the Company shall
constitute a waiver of its rights and remedies hereunder or otherwise. No
single or partial waiver by the Company of any default or right or remedy that
it may have shall operate as a waiver of any other default, right or remedy or
of the same default, right or remedy on a future occasion. The Pledgor hereby
waives presentment, notice of dishonor and protest of all instruments, included
in or evidencing any of the Obligations or the Stock Collateral, and any and
all other notices and demands whatsoever (except as expressly provided herein).
15. Notices, etc. Any communication to be made hereunder shall
(a) be made in writing, but unless otherwise stated, may be made by telex,
facsimile transmission or letter, and (b) be made or delivered to the address
of the party receiving notice which is identified with its signature below
(unless such party has by five (5) days' written notice specified another
address), and shall be deemed made or delivered, when dispatched, left at that
address, or five (5) days after being mailed, postage prepaid, to such address.
16. Termination. Upon final payment and performance in full of
the Obligations, this Agreement shall terminate and the Company shall, at the
Pledgor's request and expense, return such Stock Collateral in the possession
or control of the Company as has not theretofore been disposed of pursuant to
the provisions hereof, together with any moneys and other property at the time
held by the Company hereunder.
17. Amendment. Neither this Agreement nor any term hereof may be
amended, modified, waived, discharged or terminated except by a written
instrument expressly referring to this Agreement and to the provisions so
amended, modified, waived, discharged or terminated, and executed by the party
to be charged.
18. Successors and Assigns. This Agreement and all obligations of
the Pledgor hereunder shall be binding upon the heirs, successors and assigns
of the Pledgor, and shall, together with the rights and remedies of the Company
hereunder, inure to the benefit of the Company, its successors in title and
assigns.
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19. Governing Law; Consent to Jurisdiction. THIS AGREEMENT IS
INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW JERSEY. To the
fullest extent permitted by law, the Pledgor hereby absolutely and irrevocably
consents and submits to the exclusive jurisdiction of the courts of the State
of New Jersey and of any Federal court located in the said State in connection
with any actions or proceedings brought against the Pledgor by the Company
arising out of or relating to this Agreement or any of the agreements or
transactions contemplated hereby and hereby irrevocably agrees that all claims
in respect of any such action or proceeding shall be heard and determined in
any such court. The Pledgor hereby waives any objection that he may now or
hereafter have to the venue of any such suit or any such court or that such
suit is brought in an inconvenient court.
20. Waiver of Jury Trial. THE PLEDGOR WAIVES HIS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
the Pledgor waives any right which he may have to claim or recover in any
litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages.
21. Headings. The descriptive section headings have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
22. Severability, etc. If any term of this Agreement shall be
held to be invalid, illegal or unenforceable, the validity of all other terms
hereof shall be in no way affected thereby, and this Agreement shall be
construed and be enforceable as if such invalid, illegal or unenforceable term
had not been included herein. The Pledgor acknowledges receipt of a copy of
this Agreement.
IN WITNESS WHEREOF, intending to be legally bound, the Pledgor and the
Company have caused this Agreement to be executed as of the date first above
written.
BIOMATRIX, INC. PLEDGOR:
By:
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Xxxxx X. Xxxxxx [____________]
Chief Executive Officer
