Exhibit 99.4
EXHIBIT A
EXECUTION COPY
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated December 20, 2000 (this "Agreement"), made by
Capital Partners II, Ltd. Liquidating Trust, a liquidating trust organized under
the laws of the State of Texas (the "Pledgor" or "Borrower"), to Sulzer Medica
USA Holding Co., a Delaware Corporation, as lender (the "Lender") under the Loan
Agreement referred to below.
PRELIMINARY STATEMENTS:
(1) The Lender has entered into a Loan Agreement dated as of December
20, 2000 (the "Loan Agreement", the terms defined therein and not otherwise
defined herein being used herein as therein defined) with the Borrower.
(2) The Pledgor is the owner of warrants for 700,000 shares of Tutogen
Medical, Inc. common stock (the "Pledged Shares") described in Schedule I hereto
and intends to exercise those warrants to purchase the Pledged Shares.
(3) It is a condition precedent to the making of Advances under the
Loan Agreement that the Pledgor shall have made the pledge contemplated by this
Agreement.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lender to make Advances under the Loan Agreement, the Pledgor hereby
agrees with the Lender for its benefit as follows:
SECTION 1. Pledge. The Pledgor hereby pledges and grants to the
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Lender for its benefit a security interest in, the following (the "Pledged
Collateral"):
(i) the Pledged Shares from time to time acquired by the Pledgor and
the certificates representing the Pledged Shares, and all dividends, cash,
instruments and
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other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged
Shares; and
(ii) all proceeds of any and all of the foregoing Pledged Collateral
(including, without limitation, proceeds that constitute property of the
types described above).
SECTION 2. Security for Obligations. This Agreement secures the
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payment of all obligations of the Borrower now or hereafter existing under the
Loan Agreement whether for principal, interest, fees, expenses or otherwise, and
all obligations of the Borrower now or hereafter existing under this Agreement
(all such obligations being the "Obligations"). Without limiting the generality
of the foregoing, this Agreement secures the payment of all amounts which
constitute part of the Obligations and would be owed by the Borrower to the
Lender under the Loan Agreement but for the fact that they are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Borrower.
SECTION 3. Delivery of Pledged Collateral. All certificates or
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instruments representing or evidencing the Pledged Collateral shall be delivered
to and held by or on behalf of the Lender pursuant hereto and shall be in
suitable form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Lender. The Lender shall have the right, at any time in its
discretion and without notice to the Pledgor, to transfer to or to register in
the name of the Lender or any of its nominees any or all of the Pledged
Collateral, subject only to the revocable rights specified in Section 6(a). For
the better perfection of the Lender's rights in and to the Pledged Collateral,
the Pledgor shall forthwith, upon the pledge of any Pledged Collateral
hereunder, cause such Pledged Collateral to be registered in the name of such
nominee or nominees of the Lender as the Lender shall direct, subject only to
the revocable rights specified in Section 6(a). In addition, the
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Lender shall have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments of
smaller or larger denominations.
SECTION 4. Representations and Warranties. The Pledgor represents
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and warrants as follows:
(a) The Pledged Shares have been duly authorized and, when issued upon
the exercise of certain warrants, will be validly issued, fully paid and
non-assessable.
(b) Upon the Pledgor's delivery of the Pledged Shares to the Lender,
the Pledgor will be the legal and beneficial owner of the Pledged
Collateral free and clear of any lien, security interest, option or other
charge or encumbrance except for the security interest created by this
Agreement.
(c) The pledge of the Pledged Shares pursuant to this Agreement will
create a valid and perfected first priority security interest in the
Pledged Collateral, securing the payment of the Obligations.
(d) No consent of any other person or entity and no authorization,
approval, or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required (i) for the pledge by
the Pledgor of the Pledged Collateral pursuant to this Agreement or for the
execution, delivery or performance of this Agreement by the Pledgor, (ii)
for the perfection or maintenance of the security interest created hereby
(including the first priority nature of such security interest) or (iii)
for the exercise by the Lender of the voting or other rights provided for
in this Agreement or the remedies in respect of the Pledged Collateral
pursuant to this Agreement (except as may be required in connection with
any disposition of any portion of the Pledged Collateral by laws affecting
the offering and sale of securities generally).
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SECTION 5. Further Assurances. The Pledgor agrees that at any time
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and from time to time, at the expense of the Pledgor, the Pledgor will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Lender may reasonably
request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Lender to exercise and enforce
its rights and remedies hereunder with respect to any Pledged Collateral.
SECTION 6. Voting Rights; Dividends; Etc. (a) So long as no Event
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of Default or event which, with the giving of notice or the lapse of time, or
both, would become an Event of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise or refrain from
exercising any and all voting and other consensual rights pertaining to the
Pledged Collateral or any part thereof for any purpose not inconsistent
with the terms of this Agreement or the Loan Agreement; provided, however,
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that the Pledgor shall not exercise or refrain from exercising any such
right if, in the Lender's judgment, such action would have a material
adverse effect on the value of the Pledged Collateral or any part thereof,
and, provided, further, that the Pledgor shall give the Lender at least
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five days' written notice of the manner in which it intends to exercise, or
the reasons for refraining from exercising, any such right.
(ii) The Pledgor shall be entitled to receive and retain any and all
dividends paid in respect of the Pledged Collateral, provided, however,
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that any and all
(A) dividends paid or payable other than in cash in respect of,
and instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Pledged Collateral,
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(B) dividends and other distributions paid or payable in cash in
respect of any Pledged Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in respect of
principal of, or in redemption of, or in exchange for, any Pledged
Collateral,
shall be, and shall be forthwith delivered to the Lender to hold as Pledged
Collateral and shall, if received by the Pledgor, be received in trust for
the benefit of the Lender, be segregated from the other property or funds
of the Pledgor, and be forthwith delivered to the Lender as Pledged
Collateral in the same form as so received (with any necessary indorsement
or assignment).
(iii) The Lender shall execute and deliver (or cause to be executed
and delivered) to the Pledgor all such proxies and other instruments as the
Pledgor may reasonably request for the purpose of enabling the Pledgor to
exercise the voting and other rights which it is entitled to exercise
pursuant to paragraph (i) above and to receive the dividends which it is
authorized to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default or an event which, with the giving of notice or the lapse of time, or
both, would become an Event of Default:
(i) All rights of the Pledgor (x) to exercise or refrain from
exercising the voting and other consensual rights which it would otherwise
be entitled to exercise pursuant to Section 6(a)(i) shall, upon notice to
the Pledgor by the Lender, cease and (y) to receive the dividends payments
which it would otherwise be authorized to receive
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and retain pursuant to Section 6(a)(ii) shall automatically cease, and all
such rights shall thereupon become vested in the Lender who shall thereupon
have the sole right to exercise or refrain from exercising such voting and
other consensual rights and to receive and hold as Pledged Collateral such
dividends.
(ii) All dividends which are received by the Pledgor contrary to the
provisions of paragraph (i) of this Section 6(b) shall be received in trust
for the benefit of the Lender, shall be segregated from other funds of the
Pledgor and shall be forthwith paid over to the Lender as Pledged
Collateral in the same form as so received (with any necessary
indorsement).
SECTION 7. Transfers and Other Liens. The Pledgor agrees that it
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will not (i) sell, assign (by operation of law or otherwise) or otherwise
dispose of, or grant any option with respect to, any of the Pledged Collateral,
or (ii) create or permit to exist any lien, security interest, option or other
charge or encumbrance upon or with respect to any of the Pledged Collateral,
except for the security interest under this Agreement.
SECTION 8. Lender Appointed Attorney-in-Fact. The Pledgor hereby
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appoints the Lender the Pledgor's attorney-in-fact, with full authority in the
place and stead of the Pledgor and in the name of the Pledgor or otherwise, from
time to time in the Lender's discretion to take any action and to execute any
instrument which the Lender may deem necessary or advisable to accomplish the
purposes of this Agreement (subject to the rights of the Pledgor under Section
6), including, without limitation, to receive, indorse and collect all
instruments made payable to the Pledgor representing any dividend or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same.
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SECTION 9. Lender May Perform. If the Pledgor fails to perform any
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agreement contained herein, the Lender may itself perform, or cause performance
of, such agreement, and the expenses of the Lender incurred in connection
therewith shall be payable by the Pledgor under Section 13.
SECTION 10. The Lender's Duties. The powers conferred on the Lender
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hereunder are solely to protect its interest in the Pledged Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the safe
custody of any Pledged Collateral in its possession and the accounting for
moneys actually received by it hereunder, the Lender shall have no duty as to
any Pledged Collateral, as to ascertaining or taking action with respect to
calls, exchanges, tenders or other matters relative to any Pledged Collateral,
whether or not the Lender or has or is deemed to have knowledge of such matters,
or as to the taking of any necessary steps to preserve rights against any
parties or any other rights pertaining to any Pledged Collateral. The Lender
shall be deemed to have exercised reasonable care in the custody and
preservation of any Pledged Collateral in its possession if such Pledged
Collateral is accorded treatment substantially equal to that which the Lender
accords its own property.
SECTION 11. Remedies upon Default. If any Event of Default shall have
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occurred and be continuing:
(a) The Lender may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on default
under the Uniform Commercial Code in effect in the State of Texas at that
time (the "Code") (whether or not the Code applies to the affected
Collateral), and may also, without notice except as specified below, sell
the Pledged Collateral or any part thereof in one or more parcels at public
or private sale, at
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any exchange, broker's board or at any of the Lender's offices or
elsewhere, for cash, on credit or for future delivery, and upon such other
terms as the Lender may deem commercially reasonable. The Pledgor agrees
that, to the extent notice of sale shall be required by law, at least ten
days' notice to the Pledgor of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. The Lender shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given. The Lender may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
(b) Any cash held by the Lender as Pledged Collateral and all cash
proceeds received by the Lender in respect of any sale of, collection from,
or other realization upon all or any part of the Pledged Collateral may, in
the discretion of the Lender, be held by the Lender as collateral for,
and/or then or at any time thereafter be applied (after payment of any
amounts payable to the Lender pursuant to Section 13) against, all or any
part of the Obligations. Any surplus of such cash or cash proceeds held by
the Lender and remaining after payment in full of all the Obligations shall
be paid over to the Pledgor or to whomsoever may be lawfully entitled to
receive such surplus.
SECTION 12. Expenses. The Pledgor will upon demand pay to the Lender
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the amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, which the Lender may
incur in connection with (i) the administration of this Agreement, (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Pledged Collateral, (iii) the exercise or
enforcement of
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any of the rights of the Lender or hereunder or (iv) the failure by the Pledgor
to perform or observe any of the provisions hereof.
SECTION 13. Amendments, Etc. No amendment or waiver of any provision
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of this Agreement, and no consent to any departure by the Pledgor herefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Lender, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 14. Addresses for Notices. All notices and other
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communications provided for hereunder shall be in writing (including telecopier
communication) and mailed, telecopied, or delivered to it, if to either the
Pledgor or the Lender, at their respective addresses specified in the Loan
Agreement, or, as to either party, at such other address as shall be designated
by such party in a written notice to the other party. All such notices and other
communications shall, when mailed or telecopied, be effective when deposited in
the mails or telecopied, respectively.
SECTION 15. Continuing Security Interest; Assignments under Loan
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Agreement. This Agreement shall create a continuing security interest in the
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Pledged Collateral and shall (i) remain in full force and effect until the later
of (x) the payment in full of all amounts payable under the Loan Agreement and
this Agreement and (y) the expiration or termination of the commitment under the
Loan Agreement, (ii) be binding upon the Pledgor, its successors and assigns,
and (iii) inure, together with the rights and remedies of the Lender hereunder,
to the benefit of, and be enforceable by, the Lender and its successors,
transferees and assigns. Upon the later of the payment in full of the
obligations under the Loan Agreement and all other amounts payable under this
Agreement and the expiration or termination of the commitment
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under the Loan Agreement, the security interest granted hereby shall terminate
and all rights to the Pledged Collateral shall revert to the Pledgor. Upon any
such termination, the Lender will, at the Pledgor's expense, return to the
Pledgor such of the Pledged Collateral as shall not have been sold or otherwise
applied pursuant to the terms hereof and execute and deliver to the Pledgor such
documents as the Pledgor shall reasonably request to evidence such termination.
SECTION 16. Governing Law; Terms. This Agreement shall be governed
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by, and construed in accordance with, the laws of the State of Texas, except as
required by mandatory provisions of law and except to the extent that the
validity or perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular Pledged Collateral are governed by the
laws of a jurisdiction other than the State of Texas. Unless otherwise defined
herein or in the Loan Agreement, terms defined in Articles 8 or 9 of the Code
are used herein as therein defined.
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
CAPITAL PARTNERS II, LTD. LIQUIDATING TRUST
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Liquidating Trustee
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SCHEDULE I
Attached to and forming a part of that certain Pledge Agreement
dated December 20, 2000, by Capital Partners II, LTD. Liquidating
Trust as Pledgor, to Sulzer Medica USA Holding Co., as Lender
[B=============================================================================================================================
Warrant/Option Number Exercise Price Expiration Date Total Price
-------------- of Shares -------------- --------------- -----------
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Warrant #C-16 400,000 $1.25 November 16, 2001 $500,000
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Warrant #1 300,000 $1.50 December 31, 2000 $450,000
=============================================================================================================================
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