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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934
Biomatrix, Inc.
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(Name of Issuer)
Common Stock, $.0001 par value
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(Title or Class of Securities)
09060P-10-2
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(CUSIP Number)
Rory B. Riggs Justin P. Morreale, Esq.
Biomatrix, Inc. Bingham, Dana & Gould LLP
65 Railroad Avenue 150 Federal Street
Ridgefield, NJ 07657 Boston, MA 02110
(201) 945-9550 (617) 951-8000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
April 2, 1996
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(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
Check the following box if a fee is being paid with the statement [X]. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
(Continued on following pages)
(Page 1 of 6 Pages)
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*The remainder of this cover page shall be filed out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Page 2 of 6 Pages)
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CUSIP NO. 09060P-10-2 13D PAGE 3 OF 6 PAGES
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Rory B. Riggs
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 Not Applicable. (a) [_]
(b) [_]
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SEC USE ONLY
3
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SOURCE OF FUNDS (See Instructions)
4
PF
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
5 TO
ITEMS 2(D) OR 2(E)
Not Applicable. [_]
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States of America
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7 SOLE VOTING POWER
NUMBER OF
SHARES 600,000 -- 5.8% (See Item 5)
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH None.
REPORTING -----------------------------------------------------------
PERSON SOLE DISPOSITIVE POWER
9
WITH 600,000 -- 5.8% (See Item 5)
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SHARED DISPOSITIVE POWER
10
None.
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
600,000 -- 5.8% (See Item 5)
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CUSIP NO. 09060P-10-2 13D PAGE 4 OF 6 PAGES
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 SHARES
(See Instructions) [_]
Not Applicable.
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
5.8%
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TYPE OF REPORTING PERSON (See Instructions)
14
IN
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ITEM 1. SECURITY AND ISSUER:
This Statement (this "Schedule 13D") relates to the common stock, $.0001
par value per share ("Common Stock"), of Biomatrix, Inc., a Delaware corporation
("Biomatrix"), the principal executive offices of which are located at 65
Railroad Avenue, Ridgefield, New Jersey 07657.
ITEM 2. IDENTITY AND BACKGROUND:
(a) The name of the person filing this Schedule 13D is Rory B. Riggs (the
"Reporting Person").
(b) The business address of the Reporting Person is c/o Biomatrix, Inc.,
65 Railroad Avenue, Ridgefield, New Jersey 07657.
(c) The present principal occupation of the Reporting Person is President
of Biomatrix, Inc., 65 Railroad Avenue, Ridgefield, New Jersey 07657.
(d) During the past five years, the Reporting Person has not been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the past five years, the Reporting Person has not been party to
a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which the Reporting Person was subject to a
judgment, decree, or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
(f) The Reporting Person is a citizen of the United States of America.
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CUSIP NO. 09060P-10-2 13D PAGE 5 OF 6 PAGES
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION:
The Reporting Person purchased 300,000 shares of Common Stock of Biomatrix
in a private purchase from Biomatrix on September 7, 1995, for an aggregate
consideration of $1,830,900. The Reporting Person purchased an additional
200,000 shares of Common Stock of Biomatrix in a private purchase from Biomatrix
on April 2, 1996, for an aggregate consideration of $2,450,000, which
consideration consisted of a promissory note of the Reporting Person due April
2, 2000 payable for such amount and incurring simple interest at an annual rate
of 6% secured by the shares purchased in connection therewith. Each of the
above-described purchases of Common Stock of Biomatrix occurred at the principal
executive offices of Biomatrix. The remaining 100,000 shares of Common Stock of
Biomatrix beneficially owned by the Reporting Person constitute shares issuable
upon exercise of options exercisable within 60 days of the date of this Schedule
13D, which options were granted to the Reporting Person pursuant to Biomatrix's
1984 Stock Option Plan, as amended.
ITEM 4. PURPOSE OF TRANSACTION:
The Reporting Person acquired securities of Biomatrix for investment
purposes and has no plans or proposals of the type for which disclosure is
required pursuant to this item.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER:
The Reporting Person owns beneficially a total of 600,000 shares of Common
Stock of Biomatrix (including 100,000 shares issuable upon exercise of options
exercisable within 60 days of the date of this Schedule 13D), representing
approximately 5.8% of the outstanding shares of Common Stock of Biomatrix. The
Reporting Person has sole power to vote and dispose of such shares.
Other than the 200,000 shares of Common Stock of Biomatrix purchased by the
Reporting Person on April 2, 1996, the Reporting Person has engaged in no
transaction in the securities of Biomatrix. No person other than the Reporting
Person has the right to receive or the power to direct the receipt of dividends
from, or the proceeds from, the sale of the shares of Common Stock of Biomatrix
reported in this Schedule 13D.
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CUSIP NO. 09060P-10-2 13D PAGE 6 OF 6 PAGES
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER:
The Reporting Person purchased 200,000 shares (the "Shares") of Common
Stock of Biomatrix in a private purchase from Biomatrix on April 2, 1996. As
consideration for the Shares, Mr. Riggs delivered to Biomatrix a promissory note
due April 2, 2000 payable to Biomatrix in the amount of $2,450,000 and incurring
simple interest at an annual rate of 6% (the "Note"). Pursuant to a Stock Pledge
Agreement entered into by the Reporting Person and Biomatrix, the Reporting
Person pledged the Shares to Biomatrix as security for the Note. Under such
agreement, the number of Shares subject to such pledge shall be reduced on a pro
rata basis upon the Reporting Person's repayment of any part of the amount owed
to Biomatrix under the Note. The Shares are subject to additional conditions set
forth in a Restricted Stock Purchase Agreement between the Reporting Person and
Biomatrix, which provides that, in the event of termination of the Reporting
Person's employment or consultancy, Biomatrix may repurchase, at $12.25 per
share plus any interest accrued thereon, any of Shares that have not been
released in accordance with the schedule set forth in such agreement.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS:
Exhibit No. Description
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1. Restricted Stock Purchase Agreement, dated as of April 2, 1996,
between Biomatrix and the Reporting Person.
2. Secured Promissory Note, dated April 2, 1996, between Biomatrix and
the Reporting Person.
3. Stock Pledge Agreement, dated as of April 2, 1996, between Biomatrix
and the Reporting Person.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
6/10/96
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(Date)
/s/ Rory B. Riggs
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(Signature)
Rory B. Riggs
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(Name/Title)
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Exhibit 1
BIOMATRIX, INC.
Restricted Stock Purchase Agreement
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This Restricted Stock Purchase Agreement (this "Agreement") is made as of
this 2nd day of April 1996, between Biomatrix, Inc., a Delaware corporation (the
"Company"), and Rory B. Riggs (the "Purchaser").
WHEREAS, the Purchaser is an employee of the Company whose participation is
considered by the Company to be important for its growth; and
WHEREAS, the Company desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Company, two hundred thousand (200,000) shares of
the Company's common stock, par value $.0001 per share ("Common Stock"), all in
accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein set forth, and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto hereby mutually covenant and agree as
follows:
1. Definitions. For all purposes of this Agreement, the following
-----------
definitions shall apply, unless the context otherwise requires:
(a) "Legal Representative" shall mean the executor or executors, the
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administrator or administrators, or the other legal representative or
representatives, of the Purchaser or his or her estate.
(b) "Related Person" shall mean: (i) in relation to the Purchaser, (A) the
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Purchaser's spouse, (B) any parent or issue of the Purchaser, (C) any trust for
the benefit of any one or more of the Purchaser, his or her spouse or any parent
or issue of the Purchaser and (D) any Legal Representative of any of the
Purchaser, his or her spouse or any parent or issue of the Purchaser; (ii) in
relation to any trust, any settlor or any beneficiary thereof; (iii) in relation
to the estate of any individual described in clause (i) above, (A) any Legal
Representative of such individual, (B) any legatee or heir of such individual or
(C) any trust for the benefit of any one or more of such legatees and heirs. For
purposes of this definition, the word "issue" shall also include issue by
adoption; and the word "spouse" shall not include a spouse from whom an
individual is legally separated or in the process of obtaining a separation or
divorce.
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(c) "Released Shares" shall mean, at the relevant time of reference
---------------
thereto, all of the Shares (other than the then Unreleased Shares).
(d) "Repurchase Option" shall mean the repurchase option granted to the
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Company and its assignees under Section 6 hereof.
(e) "Shares" shall mean, collectively, (i) all of the Purchased Shares (as
------
defined in Section 2 below), (ii) any and all other stock or securities that
become subject to the Repurchase Option pursuant to Section 6(c) hereof, and
(iii) any and all other stock or securities that become subject to the
provisions of Section 8 hereof pursuant to Section 8(e) hereof.
(f) "Unreleased Shares" shall mean, at the relevant time of reference
-----------------
thereto, that number of the Purchased Shares (subject to adjustment as provided
in Section 6(c) hereof) as shall not have been released from the Repurchase
Option on or prior to such time.
2. Sale of Stock. The Company hereby agrees to sell to the Purchaser,
-------------
and the Purchaser hereby agrees to purchase from the Company, an aggregate of
two hundred thousand (200,000) shares of the Company's Common Stock (the
"Purchased Shares"), at the price of $12.25 per share for an aggregate purchase
price of $2,450,000.00.
3. Payment of Purchase Price. The aggregate purchase price for the
-------------------------
Shares shall be paid to the Company by delivery to the Company at the time of
execution of this Agreement a promissory note in favor of the Company, in a
principal amount equal to such aggregate purchase price (the "Note").
Contemporaneously with the execution and delivery to the Company of the Note,
the Purchaser shall execute and deliver to the Company a stock pledge agreement,
pursuant to which the Purchaser agrees to pledge the Purchased Shares to secure
the payment and performance of all of his obligations under the Note.
4. Issuance of Certificate for the Purchased Shares. Upon receipt by the
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Company of the Note, the Company shall issue in the name of the Purchaser duly
executed certificates evidencing the Purchased Shares, which certificates shall
be endorsed with the legends set forth in Sections 9(c) and 12(c) below.
Pursuant to that certain stock pledge agreement, by and between the Company and
the Purchaser, the Secretary of the Company shall hold such certificates until
such time as the Purchased Shares represented thereby become Released Shares and
the pro rata portion of the Note corresponding to such shares has been paid by
the Purchaser.
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5. Restriction on Transfer. Except for any transfer of Unreleased Shares
-----------------------
to the Company or its assignees as contemplated by this Agreement, none of the
Unreleased Shares or any beneficial interest therein shall be sold, transferred,
assigned, pledged, encumbered or otherwise disposed of in any way (including,
without limitation, by operation of law) at any time. None of the Released
Shares or any beneficial interest therein shall be sold, transferred, assigned,
pledged, encumbered or otherwise disposed of in any way (including, without
limitation, by operation of law), except in accordance with and upon compliance
with all of the provisions of this Agreement. Any sale, transfer, assignment,
pledge, encumbrance or other disposition of the Shares shall be void unless the
provisions of this Agreement are met.
6. Repurchase Option.
-----------------
(a) In the event of the voluntary or involuntary termination of the
Purchaser's employment or active consultancy with the Company, as the case may
be (or, if the Purchaser shall have two or more of such relationships with the
Company, in the event of the voluntary or involuntary termination of all of such
relationships between the Purchaser and the Company), for any or no reason
(including death or disability) before all of the Purchased Shares have become
Released Shares, the Company shall, upon and from the date of such termination,
as reasonably fixed and determined by the Company (the "Termination Date"), have
an irrevocable, exclusive right, but not the obligation, to repurchase all or
any number of the Unreleased Shares at the original purchase price per share of
$12.25 (subject to adjustment as provided in Section 6(c) below) plus any
interest that may have accrued under the Note with respect to that portion of
the principal amount under the Note attributable to the purchase price of such
Unreleased Shares. The Company may exercise its right to repurchase at any time
within ninety (90) days after such termination by delivery to the Purchaser or
his or her Legal Representative of a written notice of exercise (the "Repurchase
Notice") and, at the Company's option, (i) by delivery to the Purchaser or his
or her Legal Representative, together with such Repurchase Notice, of a check in
the amount of the aggregate purchase price for the Unreleased Shares being
repurchased, or (ii) by cancellation by the Company of an amount of any
indebtedness of the Purchaser to the Company equal to the aggregate purchase
price for the Unreleased Shares being repurchased, or (iii) by a combination of
(i) and (ii) so that the combined payment and cancellation of indebtedness
equals such repurchase price. Any Unreleased Shares not so repurchased shall no
longer be subject to the provisions of this Section 6. Upon delivery of such
Repurchase Notice and the payment of such aggregate purchase price in any of the
ways described above, the Company shall become the legal and beneficial owner of
the Unreleased Shares being repurchased and all rights and interests therein or
relating thereto, and the Company
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shall have the right to retain and transfer to its own name the number of
Unreleased Shares being repurchased by the Company. Notwithstanding anything in
this Agreement (including, without limitation, this Section 6(a) or Section 7)
expressed or implied to the contrary, the right to repurchase granted to the
Company under this Section 6(a) shall apply to any and all Unreleased Shares
that are outstanding on the Termination Date despite the fact that from and
after the Termination Date any or all of such Unreleased Shares are, or are
scheduled to be, released from the Repurchase Option by operation of the
provisions of Section 7 hereof.
(b) Whenever the Company shall have the right to repurchase Unreleased
Shares under this Agreement, the Company may designate and assign one or more
employees, officers, or directors of the Company or other persons or
organizations to exercise all or any part of the Company's rights under this
Agreement to repurchase all or any number of such Unreleased Shares.
(c) In the event the shares of Common Stock of the Company shall be
subdivided (whether by stock split, stock dividend or otherwise) or combined
into a greater or smaller number of shares or if, upon a merger, consolidation,
sale of all or substantially all of its assets, reorganization, split-up,
combination, reclassification, recapitalization or the like of the Company, the
shares of the Company's Common Stock shall be exchanged for other securities of
the Company or of another corporation, person or entity, then such number of
shares of Common Stock or such amount of other securities of the Company or such
other corporation, person or entity as were issued in respect of or in exchange
for the Unreleased Shares shall be, thereafter, included as part of the
Unreleased Shares, and the term "Unreleased Shares" shall, thereafter, include,
for all purposes of this Agreement, such number of shares of Common Stock and/or
such amount of other securities of the Company or such other corporation, person
or entity. Immediately upon the occurrence of any of the events referred to
above in this Section 6(c), an appropriate and equitable adjustment shall be
made to the purchase price payable by the Company or its assignees in connection
with the repurchase of any Unreleased Shares pursuant to this Section 6.
(d) Contemporaneously with the execution and delivery of this Agreement,
the Purchaser agrees to execute and deliver to the Company a stock power
relating to the Purchased Shares and any shares that may become subject to the
Repurchase Option.
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7. Release of Purchased Shares From Repurchase Option.
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(a) That cumulative number of the Purchased Shares equal to the product of
(i) the cumulative vesting percentage set forth next to such date and (ii) the
total number of the Purchased Shares (subject to appropriate adjustment upon the
occurrence of any of the events referred to in Section 6(c) hereof) shall be
released from the Repurchase Option as follows: (x) during the first three years
following the date of this Agreement, 3,333 shares per month on the second day
of each month, commencing with May 2, 1996; (y) during the fourth year following
the date of this Agreement, 6,667 per month on the second day of each of the
first eleven months, commencing with May 2, 1999; and (z) 6,675 shares on April
2, 2000.
(b) Immediately upon the occurrence of a Change of Control (as defined
below), any and all of the Unreleased Shares shall become Released Shares. For
the purposes of this Section 7(b), the term "Change of Control" shall mean sale
of all or substantially all of the assets of the Company or the coordinated sale
of 50% or more of the Company's issued and outstanding common stock.
8. Registration Rights.
-------------------
(a) At the written request of the Purchaser, during the twelve (12) month
period following sixty (60) days after the date of this Agreement, the Company
shall file, within sixty (60) days after the receipt of such request, and use
its best efforts to process to effectiveness and maintain in effect for three
(3) years, a registration statement on Form S-3 (or any successor similar form
under the Securities Act of 1933, as amended (the "Securities Act")), to permit
the sale of the Purchased Shares by the Purchaser; provided that under no
--------
circumstances shall the Purchaser be entitled to require the Company to effect
such registration more than twice.
(b) The Company shall bear all reasonable expenses and fees incurred by
the Company in connection with the registration and sale of the Purchased Shares
pursuant to Section 8(a), including the blue sky fees and expenses of the states
where the Purchaser proposes to sell any of the Purchased Shares.
(c) Notwithstanding the foregoing, the parties agree as follows:
(i) The Company shall not be required to cause a registration
statement pursuant to Section 8(a) to become effective prior to
ninety (90) days following the effective
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date of a registration statement initiated by the Company; and
(ii) If at the time of any written request to register Purchased
Shares pursuant to Section 8(a), the Company is engaged in an
activity which, in the good faith determination of the Company's
Board of Directors, would be adversely affected by the requested
registration, then the Company may at its option direct that such
request be delayed for a period not to exceed ninety (90) days
from the date of such registration request.
(d) The Company shall notify the Purchaser of the effectiveness of any
registration statement in which the Purchaser has exercised registration rights
granted pursuant to Section 8(a), together with a list of the jurisdictions
where the Company has qualified or is exempt from registration under applicable
state securities laws. The Company will prepare and file with the Securities and
Exchange Commission such amendments and supplements to any registration
statement filed pursuant to Section 8(a) (and any 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 sale of Purchased Shares by
the Purchaser. The Company will furnish to the Purchaser a reasonable number of
copies of the prospectus used in connection with a registration statement filed
pursuant to the terms of Sections 8(a) including a preliminary prospectus, which
prospectus conforms to the requirements of the Securities Act, and such other
documents as the Purchaser may reasonably request, in order to facilitate the
disposition by the Purchaser of Purchased Shares.
(e) The Company shall notify the Purchaser promptly and confirm such
notice in writing (i) of the happening of any event that makes any statement
made in such registration statement materially untrue or that requires the
making of any changes in such registration statement so that it will not contain
any untrue statement or omit to state any material fact required to be stated
therein, (ii) of the request by the Securities and Exchange Commission for a
supplement or post-effective amendment or the issuance of a stop order or (iii)
the suspension or termination of qualification in any state previously qualified
or exempt from such qualification.
(f) In connection with any registration statement referred to in Section
8(a), the Purchaser will cooperate fully with the Company and will furnish to
the Company such information as the Company may reasonably request from the
Purchaser for inclusion in the registration statement (and the prospectus
included therein).
<PAGE>
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9. Representations and Warranties of the Purchaser.
--------------- --- ---------- -- --- ---------
(a) The Purchaser hereby represents and warrants to the Company, its
officers, directors, agents, and employees as follows:
(i) That he has had an opportunity to ask questions of and receive
answers from the authorized representatives of the Company, and to review any
relevant documents and records concerning the business of the Company and the
terms and conditions of this investment, and that any such questions have been
answered to his full satisfaction.
(ii) That he has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of an
investment in the Company.
(iii) That the Shares are being acquired for his own account for
investment and not with a view toward subdivision, resale, or redistribution
thereof in a manner prohibited under the Act, and he does not presently have any
reason to anticipate any change in his circumstances or other particular
occasion or event which would cause him to sell his Shares. He has no contract,
undertaking, agreement, understanding, or arrangement with any person to sell,
transfer, or pledge to any person any part or all of the Shares for which he
hereby subscribes, or any interest therein, and has no present plans to enter
into the same.
(iv) That he is an "accredited investor" as defined in Regulation D
of the Act by virtue of his being an executive officer and director of the
Company, if not otherwise.
(v) That all information which he has provided (or will provide)
concerning himself and his financial position, is correct and complete as of the
date of this Agreement.
(b) The Purchaser acknowledges that the Company and its officers,
directors, employees, and agents are relying on the truth and accuracy of the
representations and warranties set forth in Section 9(a) in connection with the
offering of Shares for sale to the Purchaser without having first registered the
Shares under the Act. All representations, warranties, and covenants contained
in this Agreement shall survive the acceptance of this Agreement and the sale of
the Shares. Notwithstanding the foregoing, however, no representation, warranty,
acknowledgment, or agreement made herein by the Purchaser shall in any manner be
deemed to constitute a waiver of any rights granted to him under federal or
state securities laws.
<PAGE>
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10. Investment Intent.
-----------------
(a) The parties agree that none of the Shares or any beneficial interest
therein shall be sold, transferred, assigned, pledged, encumbered or otherwise
disposed of in any way (including, without limitation, by operation of law)
unless and until (i) such Shares or such beneficial interest, as the case may
be, proposed to be sold, transferred, assigned, pledged, encumbered or otherwise
disposed of are registered pursuant to an effective registration filed with the
Securities and Exchange Commission pursuant to the Act or (ii) if required by
the Company, the Company shall have received an opinion, in form and substance
satisfactory to the Company, from the Company's legal counsel to the effect that
the sale, transfer, assignment, pledge, encumbrance or other disposition of such
Shares or such beneficial interest, as the case may be, does not require
registration under the Securities Act or any applicable state securities laws.
(b) Certificates evidencing the Shares shall be endorsed with a legend, in
addition to any other legends required by this Agreement, substantially as
follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE
MORTGAGED, PLEDGED HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR, IF REQUIRED BY THE CORPORATION, AN OPINION OF
COUNSEL FOR THE CORPORATION THAT REGISTRATION IS NOT REQUIRED UNDER SUCH
ACT."
(c) The Purchaser understands and agrees that neither the Company nor any
agent of the Company shall be under any obligation to recognize any transfer of
any of the Shares if, in the opinion of counsel for the Company, such transfer
would result in violation by the Company of any federal or state law with
respect to the offering, issuance or sale of securities.
11. Tax Consequences.
----------------
(a) It is understood by the parties hereto that the issuance and sale
of the Shares hereunder may be deemed compensatory in purpose
<PAGE>
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and in effect and that, as a result, the Company may be obligated to pay
withholding taxes in respect thereof at the time the Purchaser becomes subject
to Federal income taxation with respect to the receipt of the Shares hereunder.
In the event that at the time the above-said withholding tax obligations arise
(i) the Purchaser is no longer in the employ of the Company or is no longer
otherwise providing services to the Company, as the case may be, or (ii) the
Purchaser's other cash compensation from the Company is not sufficient to meet
the aforesaid withholding tax obligation, the Purchaser hereby agrees to
reimburse the Company for all withholding taxes required to be paid in respect
of the issuance and sale of the Shares within thirty (30) days after written
request therefor is made to the Purchaser. Such request shall be made at or
about the time the Company is required to pay such withholding taxes. In the
event the Company determines that it is not obligated to withhold taxes payable
by the Purchaser with respect to the issuance and sale of the Shares but that it
is later held liable due to any non-payment of taxes on the part of the
Purchaser, the Purchaser agrees on his or her behalf, and on behalf of his or
her heirs, executors, administrators, legal representatives and assigns, to
indemnify the Company in the amount of any payment made by the Company in
respect of such liability.
(b) The Purchaser hereby agrees to deliver to the Company a signed copy of
any instrument, letter or other document he or she may execute and file with the
Internal Revenue Service evidencing his or her election under Section 83(b)(2)
of the Internal Revenue Code of 1986, as amended, to treat his or her receipt of
the Shares hereunder as includible in his or her gross income in the year of
receipt. The Purchaser shall deliver a copy of any such instrument of election
to the Company within five (5) days after the date on which any such election is
required to be made in accordance with the appropriate provisions of the
Internal Revenue Code or applicable Regulations thereunder.
12. General Provisions.
------------------
(a) This Agreement shall be governed by the internal substantive laws of
the State of New Jersey and shall be binding upon the heirs, personal
representatives, executors, administrators, successors and permitted assigns of
the parties.
(b) This Agreement supersedes all prior written and oral agreements and
understandings between the parties and represents the entire agreement between
the parties with respect to the subject matter hereof and may only be modified
or amended in writing signed by both parties.
<PAGE>
-10-
(c) In addition to the legend set forth in Section 9(c) of this Agreement,
the certificates representing the Shares shall be endorsed with the following
legend:
"THIS CERTIFICATE AND THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A RESTRICTED STOCK PURCHASE AGREEMENT DATED AS OF APRIL __,
1996, AND TO THE RESTRICTIONS UPON TRANSFER CONTAINED THEREIN. A COPY OF
THE AGREEMENT WILL BE FURNISHED TO ANY INTERESTED PARTY UPON WRITTEN
REQUEST FREE OF CHARGE."
(d) Any notice, demand, request or other communication hereunder to any
party shall be deemed to be sufficient if contained in a written instrument
delivered in person or duly sent by first class registered, certified or
overnight mail, postage prepaid, or telecopied with a confirmation copy by
regular, certified or overnight mail, addressed or telecopied, as the case may
be, to such party at the address or telecopier number, as the case may be, set
forth below or such other address or telecopier number, as the case may be, as
may hereafter be designated in writing by the addressee to the addressor listing
all parties:
if to the Corporation, to: with a copy to:
Biomatrix, Inc. Justin P. Morreale, Esq.
65 Railroad Avenue Bingham, Dana & Gould LLP
Ridgefield, NJ 07657 150 Federal Street
Attention: Endre A. Balazs Boston, MaA02110
Telecopier: (201) 945-0363 Telecopier: (617) 951-8736
if to the Purchaser, to:
Rory B. Riggs
115 Central Park West
New York, NY 10023
Telecopier: (212) 724-8407
All such notices, request and other communications shall be deemed to have
been received: (i) in the case of personal delivery, on the date of such
delivery; (ii) in the case of mailing, when received by the addressee; and (iii)
in the case of facsimile transmission, when confirmed by facsimile machine
report.
<PAGE>
-11-
(e) The rights and obligations of each party under this Agreement shall
inure to the benefit of and be binding upon such party's heirs, successors and
permitted assigns. The rights and obligations of the Company under this
Agreement shall be assignable by the Company to any one or more persons or
entities without the consent of the Purchaser. The rights and obligations of the
Purchaser under this Agreement may only be assigned with the prior written
consent of the Company.
(f) Either party's failure to enforce any provision or provisions of this
Agreement shall not in any way be construed as a waiver of any such provision or
provisions, nor prevent the party thereafter from enforcing each and every other
provision of this Agreement. The rights granted both parties herein are
cumulative and shall not constitute a waiver of either party's right to assert
all other legal remedies available to it under the circumstances.
(g) The Purchaser hereby consents to the utilization by the Company, as
necessary in connection with dealings with any governmental and regulatory
authorities, of any information supplied to the Company by the Purchaser or by
his representatives in connection with the offer and sale of the Shares, and
agrees to supply any additional information reasonably requested by any such
authority.
(h) If any provision of this Agreement shall be held illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render illegal, invalid
or unenforceable any other severable provisions of this Agreement.
(i) Headings are for convenience only and are not deemed to be part of
this Agreement.
(j) The Purchaser agrees upon request to execute any further documents or
instruments necessary or desirable to carry out the purposes or intent of this
Agreement.
(k) This Agreement may be executed in counterparts, all of which together
shall for all purposes constitute one Agreement, binding on each of the parties
hereto notwithstanding that each such party shall not have signed the same
counterpart.
(l) The Company is not by reason of this Agreement or the issuance of any
Shares obligated to continue the Purchaser's employment.
(m) In case of any dispute hereunder, the parties will submit to the
exclusive jurisdiction and venue of any court of competent jurisdiction sitting
<PAGE>
-12-
in Bergen County, New Jersey, and will comply with all requirements necessary to
give such court jurisdiction over the parties and the controversy. EACH PARTY
HEREBY WAIVES ANY RIGHT TO A JURY TRIAL AND TO CLAIM OR RECOVER PUNITIVE
DAMAGES.
IN WITNESS WHEREOF, the parties have duly executed this Agreement under
seal as of the day and year first set forth above.
BIOMATRIX, INC.
By: /s/ Endre A. Balazs /s/ Rory B. Riggs
------------------------- ----------------------
Endre A. Balazs Rory B. Riggs
Chief Executive Officer
<PAGE>
Exhibit 2
SECURED PROMISSORY NOTE
$2,450,000 Ridgefield, New Jersey
April 2, 1996
FOR VALUE RECEIVED, the undersigned, Rory B. Riggs (the "Maker"), by
this Secured Promissory Note (this "Note"), absolutely and unconditionally
promises to pay to the order of BIOMATRIX, INC., a Delaware corporation (the
"Payee"), the aggregate principal amount of Two Million Four Hundred Fifty
Thousand Dollars ($2,450,000) on April 2, 2000 (the "Maturity Date"), and to pay
simple interest on the principal amount outstanding from time to time hereunder,
from the date hereof through and including the date on which such principal
amount is paid in full, at a rate of six percent (6%) per annum simple interest.
Interest hereunder shall be due and payable on the Maturity Date or any
accelerated maturity hereof.
The Maker shall have the right to prepay the unpaid principal amount
of this Note in full at any time, or in part from time to time, without premium
or prepayment penalty, provided that there is paid with each such principal
prepayment all accrued and unpaid interest to the date of prepayment (calculated
on the basis of a 365-day year for the actual number of days for which the same
is due).
All payments of interest and principal hereunder shall be made at the
principal business address of the holder hereof. All payments hereunder shall
be applied first to payment of all, if any, other amounts except principal due
-----
under or in respect of this Note and second to repayment of principal.
------
This Note is made and delivered by the Maker to the Payee pursuant to
that certain Restricted Stock Purchase Agreement, dated as of April 2, 1996,
among the Payee and the Maker, and is secured pursuant to the provisions of a
certain Stock Pledge Agreement, dated of even date herewith, between the Maker
and the Payee.
Whenever any payment under this Note becomes due on a date that is not
a regular business day in the State of New Jersey or the State of New York, the
maturity thereof shall be extended to the next succeeding business day and
interest at the applicable rate shall accrue during such extension.
The indebtedness evidenced by this Note is and will be subordinate and
subject in right of payment to the prior payment in full of any indebtedness,
obligations or liabilities of the Maker to any bank or other financial
institution existing on the date hereof or arising hereafter.
Anything implied herein to the contrary notwithstanding, in the event
that (1) the Maker shall fail to pay when due all or any portion of the
principal of or interest on this Note, (2) the Maker shall make an assignment of
the whole or a substantial part of his assets for the benefit of
<PAGE>
creditors, or (3) there shall be commenced by or against the Maker any
proceeding under any bankruptcy, insolvency, readjustment of debt or similar law
of any jurisdiction, (each event referred to in clauses (1) through (3) above
being hereinafter referred to herein as an "Event of Default") then without
notice to or demand upon the Maker the entire unpaid principal of this Note, and
all interest accrued thereon, shall (if not already due and payable) immediately
become and be due and payable to the order of the holder hereof.
The Maker and the Payee shall provide any notices hereunder according
to the provisions of the Restricted Stock Purchase Agreement, dated as of April
2, 1996, by and between the Maker and the Company. This Note may not be
assigned or transferred by Payee without the written consent of Maker. This
Note may not be assigned or transferred by Maker without the written consent of
Payee (which consent shall not be unreasonably withheld), except that this Note
may be transferred to an affiliate or successor of the Maker without the consent
of the Payee.
The remedies of Payee as provided herein shall be cumulative and
concurrent, and may be pursued singularly, successively or together at the sole
discretion of the Payee. The Maker hereby waives The Maker hereby, to the
fullest extent permitted by applicable law: (a) waives presentment, demand,
notice, protest, and all other demands and notices in connection with delivery,
acceptance, performance, default, acceleration or enforcement of or under this
Note; (b) assents to any extension or postponement of the time of payment or any
other indulgence, and to any substitution, exchange or release of collateral;
and (c) agrees to pay to the holder, on demand, all costs and expenses of
collection, including, without limitation, reasonable attorneys' fees and legal
expenses, incurred by the holder in enforcing this Note, whether or not
litigation is commenced.
No failure by the holder to exercise, or delay by the holder in
exercising, any right or remedy hereunder shall operate as a waiver thereof, or
of any other right or remedy, and no single or partial exercise of any right or
remedy shall preclude any other or further exercise thereof or of any other
right or remedy. Acceptance by the holder of any payment after the maturity of
this Note has been accelerated shall not constitute a waiver of such
acceleration.
THIS NOTE SHALL TAKE EFFECT AS AN INSTRUMENT UNDER SEAL AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW JERSEY.
/s/ Rory B. Riggs
---------------------------------
Rory B. Riggs
<PAGE>
Exhibit 3
STOCK PLEDGE AGREEMENT
----------------------
This Stock Pledge Agreement (this "Agreement") is made as of this 2nd
day of April 1996 by and between Rory B. Riggs (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, 200,000 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 April 2, 1996, 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 principal amount of which shall
be equal to such aggregate purchase price (the "Note"); 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. 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.
(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
<PAGE>
-2-
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:
Event of Default shall have the meaning ascribed to such
----------------
term in the Note.
Stock. The Shares, together with any additional shares of
-----
capital stock of any issuer pledged to the Company from time to time
pursuant to (S)1 hereof.
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 (S)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 (S)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 (S)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 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
<PAGE>
-3-
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 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
<PAGE>
-4-
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, sue 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 (S)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 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 (S)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
<PAGE>
-5-
sales of any portion or all of the Stock pursuant to this (S)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 (S)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 (S)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
-----------
presentor 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 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.
<PAGE>
-6-
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 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
<PAGE>
-7-
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.
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 it 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.
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-8-
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.
By: /s/ Endre A. Balazs /s/ Rory B. Riggs
----------------------------- -----------------------------
Endre A. Balazs Rory B. Riggs
Chief Executive Officer
