EXHIBIT
10.11


 


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 Ari Bisimis, an individual (“Pledgor”).


 


WITNESSETH:


 


WHEREAS, the Company has loaned to Pledgor the sum of
One Hundred Fifty Thousand Dollars ($150,000) which Pledgor has used to
purchase fifty thousand (50,000) shares 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.


 


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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.


 


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.


 


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(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 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


 


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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 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.


 


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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.


 


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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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARI BISIMIS,

  	
   

  
	
   

  	
  an individual

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Ari Bisimis

  	
   

  
	
   

  	
  Name:

  	
  Ari E. Bisimis

  	
   

  
					



 


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EXHIBIT A


 


STOCK POWER SEPARATE FROM CERTIFICATE


 


FOR VALUE RECEIVED, Ari
Bisimis, an individual, hereby sells, assigns and transfers unto MacroPore,
Inc., a Delaware corporation (the “Company”), Fifty Thousand (50,000) shares of
the Common Stock of the Company, standing on the books of the Company in the
name of Ari Bisimis 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/  Ari Bisimis

  	
   

  	
   

  
	
   

  	
  Ari Bisimis

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed in the presence
  of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
  Name: