EXHIBIT

10.13




 




PLEDGE

AGREEMENT




 




THIS PLEDGE AGREEMENT (this “Agreement”) dated as of

February 26, 2002 is entered into by and between MacroPore, Inc., a

Delaware corporation (the “Company”) and Christopher J. Calhoun, an individual

(“Pledgor”).




 




WITNESSETH:




 




WHEREAS, the Company has loaned to Pledgor the sum of

Three Hundred Twenty Eight Thousand Dollars ($328,000) which Pledgor has used

to purchase one hundred thousand (100,000) of the outstanding shares of the

Company’s common stock (the “Stock”) from other stockholders of the Company.




 




WHEREAS, Pledgor has executed and delivered to the

Company a full-recourse promissory note evidencing such loan (the “Note”) and

has agreed to pledge all of the Stock to the Company as security for the

payment of the Note.




 




WHEREAS, Pledgor is a director and officer of the

Company.




 




NOW, THEREFORE, in consideration of the foregoing

facts, the parties hereto agree as follows:




 




1.                                       Pledge.  Pledgor hereby pledges and grants a security

interest to the Company in the Stock, together with all proceeds, replacements,

substitutions, newly issued stock, stock received by reason of a stock split,

bonus or any other form of issue, dividend or distribution with respect to or

arising from the Stock (collectively, the “Collateral”), as security for the

timely payment of all of Pledgor’s obligations under the Note and for Pledgor’s

performance of all of its obligations under this Agreement.




 




2.                                       Delivery.  Pledgor shall forthwith deliver to the

Company the Collateral together with stock powers in form attached hereto as Exhibit

A, duly executed in blank, regarding the Collateral.  The Company agrees to cooperate with Pledgor

and to use commercially reasonable efforts to transfer the Collateral to

Pledgor; provided that the Company is reasonably able to maintain a perfected

security interest in the Collateral, including, but not limited to, by entering

into a securities account control agreement with the securities intermediary,

if any, holding the Collateral on account for Pledgor.




 




3.                                       Pledgor’s

Representations And Warranties. 

Pledgor represents and warrants that: (i) the Collateral is owned

free and clear of any and all claims, security interests, pledges, options to

purchase or sell, redemptions or liens, other than those in favor of the Company

granted hereby; (ii) Pledgor has full power to convey the Collateral;

(iii) no financing statements covering the Collateral are recorded with

any cognizant state official or recording office; and (iv) Pledgor will

continue to beneficially own the Collateral at all times until the termination

of this Agreement.  Notwithstanding

anything to the contrary in the foregoing, Pledgor may sell or transfer the

Collateral upon the Company’s prior, written consent and subject to the

Note.  In addition, Pledgor may transfer

the Collateral to the Calhoun Family Trust, of which Pledgor and




 




1





























 




Michelle C. Calhoun are trustees, or TTMC Investments, Inc.; provided

that (i) Pledgor at all times beneficially owns the Collateral, and

(ii) transferee agrees in writing to be bound by the terms hereof.




 




4.                                       Company’s

Covenants.  The Company agrees to

hold the Collateral as security for the timely payment of all of Pledgor’s

obligations under the Note and for Pledgor’s performance of all of its

obligations under this Agreement, as provided herein.  At no time shall the Company dispose of or encumber the

Collateral, except as otherwise provided in this Agreement.




 




5.                                       Pledgor’s

Covenants.  Pledgor covenants and

agrees that:  (i) it will execute

and deliver, or cause to be executed and delivered, all such other stock

powers, proxies, instruments and documents as the Company may reasonably

request from time to time in order to carry out the provisions and purposes

hereof; (ii) it will take all such other action as the Company may

reasonably request from time to time in order to carry out the provisions and

purposes hereof; (iii) the Collateral will remain free and clear of all

security interests and liens throughout the term hereof; and (iv) it will

forward to the Company, immediately upon receipt, copies of any information or

documents received by Pledgor in connection with the Collateral.  For purposes of defining security interest

perfection, Pledgor further agrees that any Collateral which is in transit to

the Company shall be deemed to be in the Company’s possession.  Pledgor warrants and represents that none of

the Collateral constitutes margin securities for the purposes of Regulations T,

U or X, and also warrants and represents that none of the proceeds of any loans

made by the Company to Pledgor will be used to purchase or carry any margin

stock.




 




6.                                       Stock

Adjustments And Dividends.  If

during the term of this Agreement, any stock dividend, reclassification,

readjustment or other change is declared or made in the capital structure of

the Company, or both, all new, substituted and additional shares, or other

securities, issued to Pledgor by reason of any such change or exercise shall be

delivered to and held by the Company under the terms of this Agreement in the

same manner as the Collateral originally pledged hereunder.




 




7.                                       Voting

Rights.  During the term of this

Agreement, Pledgor shall have the right to vote the Collateral on all corporate

questions for all purposes; provided that Pledgor is not in default in the

performance of any term of this Agreement or in any payment due under the

Note.  Upon the occurrence of an Event

of Default, the Company shall have the right, to the extent permitted by law,

to vote and to give consents, ratifications and waivers and take any other

action with respect to the Collateral with the same force and effect as if the

Company were the absolute and sole owner of the Collateral.




 




8.                                       Events

Of Default.  An “Event of Default”

under this Agreement shall occur upon any default on the obligations, terms,

conditions, representations, warranties, covenants or agreements hereunder, or

an Event of Default under the Note, or under any agreement, instrument or

document executed by Pledgor with or in favor of the Company.  Pledgor hereby appoints the Company as its

attorney-in-fact to take such action, upon an Event of Default, as may be

necessary or appropriate to cause a transfer of the Collateral on the books of

the Corporation to the name of the Company or to the name of the Company’s

nominee and take any other action on behalf of Pledgor permitted hereunder or

under applicable law.




 




2





























 




9.                                       Remedies

Upon Default.  In addition to the

other remedies provided for herein, in the Note, or otherwise available under

applicable law, upon and after the occurrence of an Event of Default.




 




(a)                                  The

Company may:




 




(i)                                     exercise

in respect to the Collateral, any one or more of the rights and remedies

available under the California Uniform Commercial Code and other applicable

law; or




 




(ii)                                  after

ten (10) days prior written to Pledgor, sell or otherwise assign, give an

option or options to purchase or dispose of and deliver the Collateral (or

contract to do so), or any part thereof. 

Such disposition may be made in one or more parcels at public or private

sale or sales, at any exchange, broker’s board or at any of the Company’s

offices or elsewhere upon such terms and conditions as it may deem advisable

and at such prices as it may deem best, for cash, on credit or for future

delivery.  The disposition shall be made

without assumption of any credit risk, free of any claim or right of whatsoever

kind (including any right or equity of redemption) of Pledgor, which claim,

right and equity are hereby expressly waived and released.  The Company shall have the right to the

extent permitted by applicable law, upon any such sale or sales, public or

private, to purchase the whole or any part of the Collateral so sold; provided,

however, Pledgor shall not receive any net proceeds, if any, of any such credit

sale or future delivery until cash proceeds are actually received by the

Company (which cash proceeds shall be applied by the Company against Pledgor’s

obligations under the Note) and after all of Pledgor’s obligations under the

Note have been paid in full.  In case of

any sale of all or any part of the Collateral on credit or for future delivery,

the Collateral so sold may be retained by the Company until the selling price

is paid by the purchaser thereof, but the Company shall incur no liability in

case of the failure of such purchaser to pay for the Collateral so sold and, in

case of such failure, the Collateral may again be sold as herein provided.




 




(b)                                 Any

notice required to be given by the Company of a sale of the Collateral, or any

part thereof, or of any other intended action by the Company, which occurs not

less than five (5) days prior to such proposed action, shall constitute

commercially reasonable and fair notice to Pledgor thereof.  No notification need be given to Pledgor if

it has signed, after the occurrence of an Event of Default, a statement

renouncing or modifying any right to notification of sale or other intended

disposition.




 




(c)                                  The

Company shall not be obligated to make any sale or other disposition of the

Collateral, or any part thereof unless the terms thereof shall, in its sole

discretion, be satisfactory to it.  The

Company may, if it deems it reasonable, postpone or adjourn the sale of any of

the Collateral, or any part thereof, from time to time by an announcement at

the time and place of such sale or by announcement at the time and place of

such postponed or adjourned sale, without being required to give a new notice

of sale.  Pledgor agrees that the

Company has no obligations to preserve rights against prior parties to the

Collateral.




 




(d)                                 Pledgor

acknowledges and agrees that the Company may comply with limitations or

restrictions in connection with any sale of the Collateral in order to avoid

any violation of applicable law or in order to obtain any required approval of

the sale or of the




 




3





























 




purchase thereof by any governmental regulatory authority or

official.  Without limiting the

generality of the foregoing, Pledgor acknowledges and agrees that the Company

may be unable to effect a public sale of any or all the Collateral by reason of

certain prohibitions contained in the federal securities laws and applicable

state securities laws, but may be compelled to resort to one or more private

sales thereof to a restricted group of purchasers who will be obliged to agree,

among other things, to acquire such securities for their own account for

investment and not with a view to the distribution or resale thereof.  Pledgor acknowledges and agrees that any

such private sale may result in prices and other terms less favorable to the

seller than if such sale were a public sale. 

Notwithstanding any such circumstances, Pledgor acknowledges and agrees

that such compliance shall not result in any such private sale for such reason

alone being deemed to have been made in a commercially unreasonable

manner.  The Company shall not be liable

or accountable to Pledgor for any discount allowed by reason of the fact that

the Collateral is sold in compliance with any such limitation or

restriction.  The Company shall not be

under any obligation to delay a sale of any of the Collateral for the period of

time necessary to permit the issuer of such securities to register such

securities for public sale under the federal securities laws, or under

applicable state securities laws, even if the issuer desires, requests or would

agree to do so.




 




(e)                                  Out

of the proceeds of any sale, the Company may retain an amount sufficient to pay

all amounts then due under the Note, together with all expenses of the sale and

reasonable attorneys’ fees.  Any surplus

of such cash or cash proceeds held by the Company and remaining after payment

in full of all of Pledgor’s obligations under the Note shall be paid over to

Pledgor or to whomsoever may be lawfully entitled to receive such surplus.  Pledgor shall be liable for any deficiency

that remains after the Company has exercised its rights under this Agreement.




 




10.                                 Successors

And Assigns.  This Agreement shall

be binding upon and inure to the benefit of Pledgor, the Company, and their

respective successors and assigns. Unless specified otherwise in this

Agreement, Pledgor may not assign or transfer this Agreement or any rights or

duties hereunder without the Company’s prior written consent and any prohibited

assignment shall be absolutely void.  No

consent to an assignment by the Company shall release Pledgor from his

obligations under the terms of this Agreement.




 




11.                                 Term

and Termination.  This Agreement

shall remain in full force and effect until Pledgor has satisfied all of

Pledgor’s obligations under the Note in full. 

At the expiration of the term of this Agreement or upon payment in full

of the outstanding principal balance of the Note and all interest and other

charges due under the Note, the Company shall return to Pledgor all of the

Collateral and all documents relating to this Agreement, together with any

further documents necessary to establish that the within pledge is terminated.  If no such stock certificates were

delivered, the Company will terminate the securities account control agreement

entered into with the Borrower’s broker to establish that the within pledge is

terminated.




 




12.                                 Applicable

Law.  This Agreement shall be

governed by and construed under the internal laws of the State of California.




 




13.                                 Severability.  Whenever possible, each provision of this

Agreement shall be interpreted in such manner as to be effective and valid

under applicable law, but, if any provision




 




4





























 




of this Agreement shall be held to be prohibited or invalid under

applicable law, such provision shall be ineffective only to the extent of such

prohibition or invalidity, without invalidating the remainder of such provision

or the remaining provisions of this Agreement.




 




14.                                 Integrated

Agreement.  This Agreement and the

Note set forth the entire understanding of the parties with respect to the

within matters, and may not be modified except by a writing signed by all

parties.




 




15.                                 Incorporation

By Reference.  All of the terms and

conditions, including, without limitation, the warranties, representations,

covenants, agreements and default provisions, of the Note are incorporated

herein by this reference.




 




16.                                 Counterparts.  This Agreement may be executed in one or

more counterparts, each of which shall be deemed an original, but all of which

together shall constitute one and the same instrument and agreement.




 




17.                                 Section

Headings.  The section headings

herein are for convenience of reference only, and shall not affect in any way

the interpretation of any of the provisions hereof.




 




18.                                 Arbitration.  Any disputes between Pledgor and the Company

arising out of or relating to this Agreement shall be resolved by an impartial

arbitrator in an arbitration proceeding held in San Diego County, California

pursuant to the rules of the American Arbitration Association then in

effect.  Either party, at its option,

may initiate binding arbitration by delivering written notice to the other

party; provided, that, if there are multiple disputes, all outstanding disputes

shall be resolved by a single arbitration. 

The parties shall attend and participate in, and shall be bound by the

results of, the arbitration proceeding. 

The arbitrator shall be selected by agreement between Pledgor and the

Company, but if they do not agree on the selection of an arbitrator within 15

days after the date of the request for arbitration, the arbitrator shall be

selected pursuant to the rules of that Association.  If for any reason the American Arbitration Association declines

to accept the arbitration proceedings, the parties shall use the procedures set

forth in the California Code of Civil Procedure Section 1280 et  seq.  The award rendered by the arbitrator shall

be conclusive and binding upon Pledgor and the Company.  Each party shall pay its own expenses for

the arbitration and the fee and expenses of the arbitrator shall be shared

equally.  Judgement upon the award may

be entered in any court having jurisdiction.




 




5





























 




IN WITNESS WHEREOF, the Company has caused this

Agreement to be executed on its behalf by its duly authorized officer, and

Pledgor has personally executed this Agreement.




 




	

   


  	

  MACROPORE, INC.,


  
	

   


  	

  a Delaware corporation


  
	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ Charles Galetto


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

  Name:


  	

  Charles Galetto


  	

   


  
	

   


  	

   


  
	

   


  	

  Title:


  	

  Sr. V.P. Finance/Administration


  	

   


  
	

   


  	

   


  
	

   


  	

  CHRISTOPHER J. CALHOUN,


  
	

   


  	

  an individual


  
	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ Christopher J. Calhoun


  	

   


  
	

   


  	

   


  
	

   


  	

  Name:


  	

  Christopher J. Calhoun


  	

   


  
					





 




6





























 




EXHIBIT A




 




STOCK POWER SEPARATE FROM CERTIFICATE




 




FOR VALUE RECEIVED, Christopher J. Calhoun, an

individual, hereby sells, assigns and transfers unto MacroPore, Inc., a

Delaware corporation (the “Company”), One Hundred Thousand (100,000) shares of

the Common Stock of the Company, standing on the books of the Company in the

name of Christopher J. Calhoun or his successors and assigns as permitted under

the terms of the Pledge Agreement,      , and does hereby

irrevocably constitute and appoint

                                        ,

attorney to transfer the said stock on the books of said corporation with full

power of substitution in the premises.




 




 




	

  Dated:


  	

  2/26, 2002


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  /s/ Christopher J. Calhoun


  	

   


  
	

   


  	

   


  	

  Christopher J. Calhoun


  
						





 




Signed in the presence of:




 




	

  By:


  	

  /s/  Charles

  Galetto


  	

   


  
	

  Name:


  	

  Charles Galetto