-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, APAfAapQY7z7MRoAcFx6iQVsJV1pBKN8FqsptZ7uGJXCmNcanQbsm1+zGDBFFiS6 Dm7jAV8k+QOaWaFPZyYyPg== 0000929624-01-000010.txt : 20010122 0000929624-01-000010.hdr.sgml : 20010122 ACCESSION NUMBER: 0000929624-01-000010 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010105 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TUTOGEN MEDICAL INC CENTRAL INDEX KEY: 0000816949 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-MEDICAL, DENTAL & HOSPITAL EQUIPMENT & SUPPLIES [5047] IRS NUMBER: 593100165 STATE OF INCORPORATION: FL FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-41686 FILM NUMBER: 1502360 BUSINESS ADDRESS: STREET 1: 1719 ROUTE 10 STE 314 STREET 2: STE 130 CITY: PARSIPPANY STATE: NJ ZIP: 07054 BUSINESS PHONE: 973-359-84 MAIL ADDRESS: STREET 1: 10500 UNIVERSITY CTR DR STREET 2: STE 130 CITY: TAMPA STATE: FL ZIP: 33612 FORMER COMPANY: FORMER CONFORMED NAME: BIODYNAMICS INTERNATIONAL INC DATE OF NAME CHANGE: 19930611 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN BIODYNAMICS INC DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SULZER MEDICA USA HOLDING CO CENTRAL INDEX KEY: 0001128739 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 133169695 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 3 EAST GREENWAY PLAZA STREET 2: SUITE 1600 CITY: HOUSTON STATE: TX ZIP: 77046-0391 BUSINESS PHONE: 7135616300 MAIL ADDRESS: STREET 1: 3 EAST GREENWAY PLAZA STREET 2: SUITE 1600 CITY: HOUSTON STATE: TX ZIP: 77046 SC 13D/A 1 0001.txt AMENDMENT NO. 2 TO SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 SCHEDULE 13D/A Amendment No. 2 (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) Tutogen Medical, Inc. - ------------------------------------------------------------------------------- (Name of Issuer) Common Stock, Par Value $0.01 Per Share - ------------------------------------------------------------------------------- (Title of Class of Securities) 90110710 - ------------------------------------------------------------------------------- (CUSIP Number) David S. Wise, Esq. Sulzer Medica USA Inc. 3 East Greenway Plaza, Suite 1600 Houston, Texas 77046 Telephone: (713) 561-6365 - ------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 20, 2000 - ------------------------------------------------------------------------------- (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 (SS) 240.13d-1(e), (SS) 240.13d-1(f) or (SS) 240.13d-1(g), check the following box. [_] SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 90110710 PAGE 2 OF 7 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Sulzer AG 98-0109623 - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [_] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 Switzerland - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 1,344,670 shares of Common Stock ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 1,344,670 shares of Common Stock - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 1,344,670 shares of Common Stock - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 9.0% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 CO - ------------------------------------------------------------------------------ SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 90110710 PAGE 3 OF 7 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Sulzer Medica Ltd. - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [_] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 Switzerland - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 1,344,670 shares of Common Stock ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 1,344,670 shares of Common Stock - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 1,344,670 shares of Common Stock - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 9.0% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 CO - ------------------------------------------------------------------------------ SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 90110710 PAGE 4 OF 7 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Sulzer Medica USA Holding Co. 13-3169695 - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [_] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 Delaware - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 1,344,670 shares of Common Stock ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 1,344,670 shares of Common Stock - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 1,344,670 shares of Common Stock - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 9.0% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 CO - ------------------------------------------------------------------------------ This Amendment No. 2 (this "Amendment") amends the Statement on Schedule 13D --------- filed with the Securities and Exchange Commission by Sulzer AG, a corporation established under the laws of Switzerland, Sulzer Medica Ltd., a corporation established under the laws of Switzerland, and Sulzer Medica USA Holding Co., a corporation established under the laws of the State of Delaware (collectively herein referred to as the "Sulzer Entities") on November 13, 2000 (the "Schedule --------------- -------- 13D") and as amended by Amendment No. 1 on November 21, 2000. This Amendment is - --- filed with respect to the common stock, par value $0.01 (the "Common Stock"), of ------------ Tutogen Medical, Inc., a Florida corporation (the "Issuer") and is filed to ------ reflect information required by Rule 13d-2 under the Securities and Exchange Act of 1934, as amended, with respect to the Common Stock. The capitalized terms used in this Amendment and not otherwise defined herein have the meanings ascribed to such terms in the Schedule 13D. Item 6. Contracts, Arrangements, Understanding of Relationships with Respect to Securities of the Issuer Item 6 is hereby supplemented and amended by the insertion of the following at the end thereof: "Pursuant to the Agreement, Sulzer Medica USA Holding Co. entered into a Loan Agreement dated as of December 20, 2000 (the "Loan Agreement") whereby it -------------- agreed to make available (or cause to be made available) to the Trust from time to time, upon the written request of the Liquidating Trustee, such funds in an aggregate principal amount equal to the exercise price of the Trust's options and warrants for shares of Common Stock or other equity security of the Issuer. On December 20, 2000, Sulzer Medica USA lent the Trust $950,000 to exercise warrants for 700,000 shares of Common Stock. This loan is secured by a pledge of 700,000 shares of Common Stock to Sulzer Medica USA Holding Co. pursuant to a Pledge Agreement dated December 20, 2000." Item 7. Material to be Filed as Exhibits Item 7 is hereby amended to include the following exhibits, attached hereto: Exhibit 99.1 Joint Filing Agreement. Exhibit 99.3 Loan Agreement dated as of December 20, 2000 between Sulzer Medica USA Holding Co. and Capital Partners II, Ltd. Liquidating Trust. Exhibit 99.4 Pledge Agreement dated December 20, 2000 between Sulzer Medica USA Holding Co. and Capital Partners II, Ltd. Liquidating Trust. 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. Dated: January 4, 2001 SULZER AG By: /s/ Roman Beran --------------------------------------- Name: Roman Beran Title: Deputy Vice President and General Counsel, Head of Legal Department By: /s/ Kurt Haegi --------------------------------------- Name: Kurt Haegi Title: Secretary General 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. Dated: January 4, 2001 SULZER MEDICA LTD. By: /s/ Andre P. Buchel --------------------- Name: Andre P. Buchel Title: Chief Executive Officer By: /s/ Vanessa Oelz ------------------ Name: Vanessa Oelz Title: Secretary General 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. Dated: January 4, 2001 SULZER MEDICA USA HOLDING CO. By: /s/ David S. Wise ------------------- Name: David S. Wise Title: Secretary EX-99.1 2 0002.txt JOINT FILING AGREEMENT EXHIBIT 99.1 JOINT FILING AGREEMENT The undersigned hereby agree that the Statement on Schedule 13D, dated November 13, 2000, (the "Schedule 13D"), with respect to the Common Stock, $0.01 par value, of Tutogen Medical, Inc. is, and any amendments thereto executed by each of us shall be, filed on behalf of each of us pursuant to and in accordance with the provisions of Rule 13d-1(k) (1) (iii) under the Securities and Exchange Act of 1934, as amended, and that this Agreement shall be included as an Exhibit to the Schedule 13D. Each of the undersigned agrees to be responsible for the timely filing of the Schedule 13D and any amendments thereto, and for the completeness and accuracy of the information concerning itself contained therein. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 4th day of January, 2001. SULZER AG By: /s/ Roman Beran ------------------------------------------- Name: Roman Beran Title: Deputy Vice President and General Counsel, Head of Legal Department By: /s/ Kurt Haegi ------------------------------------------- Name: Kurt Haegi Title: Secretary General SULZER MEDICA LTD. By: /s/ Andre Buchel ------------------------------------------- Name: Andre Buchel Title: President and Chief Executive Office By: /s/ Vanessa Oelz ------------------------------------------- Name: Vanessa Oelz Title: Secretary General SULZER MEDICA USA HOLDING CO. By: /s/ David S. Wise ------------------------------------------- Name: David S. Wise Title: Secretary EX-99.3 3 0003.txt LOAN AGREEMENT DATED DECEMBER 20, 2000 Exhibit 99.3 EXECUTION COPY LOAN AGREEMENT Dated as of December 20, 2000 Capital Partners II, Ltd. Liquidating Trust, a liquidating trust organized under the laws of the State of Texas (the "Borrower"), and Sulzer Medica USA Holding Co., a Delaware corporation (the "Lender"), agree as follows: ARTICLE I AMOUNTS AND TERMS OF THE ADVANCES Section 1.1 The Advances. The Lender agrees, on the terms and ------------ conditions hereinafter set forth, to make advances (the "Advances") to the Borrower in an aggregate principal amount equal to $950,000, from time to time on any Business Day during the period from the date hereof to and including November 17, 2002. "Business Day" means any day other than a Saturday, Sunday or any other day on which commercial banks are required by law or authorized to close in Houston, Texas. Any Advance which is prepaid as provided herein cannot be reborrowed. Section 1.2 Making the Advances. Each Advance shall be made on notice, ------------------- given not later than 10:00 A.M. Houston on the second Business Day prior to the date of the proposed Advance by the Borrower to the Lender. Each such notice of an Advance (a "Notice of Advance") shall be by telephone, confirmed immediately in writing, or telecopier specifying therein the requested date and amount of such Advance. Upon fulfillment of the applicable conditions set forth in Section 2, the Lender will pay such amount by wire transfer of immediately available funds (to an account designated by the Borrower). Each Notice of Advance shall be irrevocable and binding on the Borrower. Section 1.3 Repayment. The Borrower shall repay to the Lender on --------- November 17, 2002, the aggregate principal amount of the Advances (including all accrued interest which has been added to the principal amount of an Advance as provided in Section 1.4(a)) then outstanding, together with all accrued interest thereon. Section 1.4 Interest. (a) Interest. Interest shall accrue on the -------- -------- unpaid principal amount of each Advance from the date of such Advance until such principal amount shall be paid in full at a fixed rate per annum, equal to the lesser of (i) the rate of one-year LIBOR (as reported in The Wall Street Journal on the date of the funding of such Advance) and (ii) the maximum rate permissible by law on the date of such Advance, calculated on the basis of a 365/366-day year for the actual number of days elapsed, provided that on the first annual anniversary of each Advance (in respect of all Advances made prior to the first anniversary of the initial Advance) all accrued interest shall be added to the principal amount of each Advance and interest will thereafter accrue thereon until such principal amount is paid in full at the lesser of such rates referred to above in effect on such first annual anniversary. (b) Default Interest. Upon the occurrence and during the continuance ---------------- of any Event of Default (as defined in Section 6.1), interest shall accrue on the unpaid principal amount of the Advances at a rate per annum equal to the lesser of (a) 2% over the prime rate in effect from time to time published in The Wall Street Journal and (b) the maximum rate permissible by law from time to time, 1 calculated on the basis of a 365/366-day year for the actual number of days elapsed, and shall be payable from time to time at the option of the Lender on demand. Section 1.5 Prepayments; Termination of Commitment. (a) Optional -------------------------------------- -------- Prepayments. The Borrower may, upon at least two Business Days' notice to the - ----------- Lender stating the proposed date of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding principal amount of the Advances in whole or in part together with all accrued interest on the Advances prepaid to the date of such prepayment. (b) Mandatory Prepayments. Not later than the end of the Business Day --------------------- on which the Borrower sells any shares of common stock of Tutogen Medical, Inc. ("Tutogen"), it will cause the net proceeds of such sale to be delivered to the Lender to prepay the outstanding principal amount of the Advances, together with accrued interest thereon. Section 1.6 Payments and Computations. The Borrower shall make each ------------------------- payment hereunder not later than 10:00 A.M. Houston on the day when due in U.S. dollars to the Lender at an account as specified by the Lender in advance in writing in same day funds. Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest. The Lender shall maintain an account or accounts evidencing the indebtedness of the Borrower resulting from each Advance, including the amounts of principal and interest payable and paid to the Lender from time to time hereunder, and the entries made in such accounts shall be conclusive and binding for all purposes, absent manifest error. Section 1.7 Use of Proceeds. The Borrower will use the proceeds of the --------------- Advances only to purchase up to 700,000 shares of Tutogen common stock upon its exercise of certain warrants in respect thereof, and coincidentally with each such purchase the Borrower shall pledge such shares to the Lender as provided herein. ARTICLE II CONDITIONS TO LENDING Section 2.1 Conditions to Initial Advance. The obligation of the ----------------------------- Lender to make the initial Advance is subject to the satisfaction of the following conditions: (a) Approvals. An executed copy of the Trust Agreement (as --------- hereinafter defined) and all other documents that the Lender may reasonably request with respect to the Borrower and with respect to the transactions contemplated hereby. (b) Pledge Agreement. A pledge agreement (the "Pledge Agreement") ---------------- duly executed by the Borrower in substantially the form of Exhibit A attached hereto, together with the executed uniform commercial code financing statements, in form satisfactory to the Lender and to be filed in each jurisdiction necessary to perfect the security interests under the Pledge Agreement. Section 2.2 Conditions Precedent to Each Advance. The obligation of ------------------------------------ the Lender to make each Advance, including the initial Advance, is subject to the fulfillment to the Lender's satisfaction, on or prior to the date of such Advance, of the following conditions: (a) Representations and Warranties. The representations and ------------------------------ warranties of the Borrower contained in this Agreement shall be true, complete and correct in all material respects on and 2 as of the date of such Advance with the same effect as if such representations and warranties had been made on and as of such date before and after giving effect to such Advance. (b) No Default. After giving effect to such Advance, no Event of ---------- Default or event which with the giving of notice or passage of time would be an Event of Default, shall have occurred and be continuing. (c) Notice to Exercise and Irrevocable Instructions. The Borrower ----------------------------------------------- shall deliver to the Lender (i) a notice of the number of warrants for Tutogen common stock it intends to exercise with the proceeds of such Advance, the number of shares of common stock of Tutogen it will purchase with the proceeds of such Advance and the aggregate purchase price thereof, which notice shall also include wire instructions to the Lender to transfer the proceeds of such Advance, which instructions shall be agreed to by Tutogen, to Tutogen, (ii) a copy of irrevocable instructions to Tutogen to deliver as soon as practicable, but in any event not later than two Business Days after such Advance to the Lender the shares of Tutogen purchased with the proceeds of such Advance and (iii) undated executed stock powers with respect to such shares. ARTICLE III REPRESENTATIONS AND WARRANTIES The Borrower represents and warrants to the Lender that: Section 3.1 Existence; Qualification; Power; Licenses and Permits. The ----------------------------------------------------- Borrower (i) is a trust duly created under the laws of the State of Texas, (ii) is validly existing and in good standing under the laws of the State of Texas, (iii) has all power and authority required to own its properties and assets and to carry on its business as now conducted and (iv) has all licenses, authorizations, consents, approvals, franchises, leases, permits, certificates, qualifications, easements, rights of way and other rights required to carry on its business as now conducted the failure to have which would reasonably be expected to have a Material Adverse Effect. "Material Adverse Effect" means a material adverse effect on (i) the business, operations, results of operations, assets, liabilities, condition (financial or otherwise) of the Borrower, (ii) the Borrower's ability to perform its obligations hereunder, or (iii) the rights and remedies of the Lender hereunder. The Borrower is not in violation of the terms of any such license, authorization, consent, approval, franchise, lease, permit, certificate, qualification, easement, right of way or other right in any such case which would have a Material Adverse Effect. Section 3.2 Authorization; Contravention. The execution, delivery and ---------------------------- performance by the Borrower of this Agreement and the Pledge Agreement and the consummation by the Borrower of the transactions contemplated hereby and thereby (i) are within the Borrower's powers, (ii) have been duly authorized by all necessary action, (iii) require no action by or in respect of, or filing with, any governmental body, agency or official, (iv) do not contravene, or constitute a default under, any provision of any applicable law, statute, ordinance, regulation, rule, order or other governmental restriction or of its constituent documents, (v) do not contravene, or constitute a default under, any agreement, judgment, injunction, order, decree, indenture, contract, lease, instrument or other commitment to which the Borrower is a party or by which the Borrower or any of its assets are bound and which could reasonably be expected to have a Material Adverse Effect, and (vi) will not result in the creation or imposition of any lien upon any asset of the Borrower under any existing indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Borrower is a party or by which it or any of its assets may be bound or affected. 3 Section 3.3 Binding Effect. This Agreement is the legal, valid and -------------- binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms. Section 3.4 Information. The Trust Estate constitutes all of the ----------- assets of the Borrower; and, except as otherwise set forth in this Agreement, the Borrower has no liabilities, including any liability for Taxes, whether or not these liabilities are contingent, would be reflected on the balance sheet of the Borrower under U.S. generally accepted accounting principles ("GAAP"), or ---- otherwise. "Trust Estate" shall mean 7,204,908 shares of Tutogen Medical, Inc. common stock, warrants to purchase an additional 700,000 shares of Tutogen Medical, Inc. common stock and all of the cash and other securities held by Renaissance Capital Partners II, Ltd, prior to the date of transfer into the Borrower, which collectively constitute the entire Trust Estate under the First Amended and Restated Trust Agreement dated November 17, 2000 (the "Trust Agreement"). "Taxes" means any and all taxes, fees, levies, duties, tariffs, imposts and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any governmental authority or taxing authority, including, without limitation, taxes or other charges on or with respect to income, franchise, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers' compensation, unemployment compensation or net worth; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value-added or gains taxes; license, registration and documentation fees; and customers' duties, tariffs and similar charges. Section 3.5 Litigation and Judgments. There is no (i) injunction, ------------------------ stay, decree, judgment, writ or order issued and outstanding by any court or arbitrator or any governmental body, agency or official against the Borrower or (ii) action, suit, proceeding, litigation, contested claim, investigation or arbitration pending, or to the knowledge of the Borrower threatened, against or affecting the Borrower which, in either case, would reasonably be expected to have a Material Adverse Effect, or which in any manner impairs the validity of this Agreement. Section 3.6 Pension Plan. The Borrower has no pension plans or welfare ------------ benefit plans or any liabilities of any nature in connection with any such plans. Section 3.7 Margin Security. None of the proceeds of the Advances will --------------- be used for the purpose of purchasing or carrying any margin securities for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase any margin securities or for any other purpose not permitted by Regulation U or X of the Board of Governors of the Federal Reserve System. ARTICLE IV AFFIRMATIVE COVENANTS The Borrower covenants and agrees that, so long as any Advance shall remain unpaid or the Lender shall have any commitment hereunder, the Borrower shall perform all covenants in this Article IV. Section 4.1 Information. The Borrower will deliver to the Lender from ----------- time to time such information regarding the financial position or business of the Borrower or its assets as the Lender may reasonably request. Section 4.2 Payment of Obligations. The Borrower will pay and ---------------------- discharge, at or before maturity, all of its material obligations and liabilities, including, without limitation, tax liabilities, except 4 where the same may be contested in good faith by appropriate proceedings, and will maintain, in accordance with GAAP, appropriate reserves for the accrual of any of the same. Section 4.3 Maintenance of Property. The Borrower will keep all ----------------------- material property useful and necessary in its business in good working order and condition (ordinary wear and tear, casualty and condemnation excepted) and not commit or suffer any waste with respect to any of its material properties. Section 4.4 Compliance with Laws. The Borrower will comply with all -------------------- acts, regulations, orders, directions and ordinances of any legislative, administrative or judicial body or official, applicable to it or to the operation of its business except where the failure to so comply would not reasonably be expected to have a Material Adverse Effect. Section 4.5 Inspection of Property, Books and Records. The Borrower ----------------------------------------- agrees that the Lender or its agents may enter upon the premises of the Borrower at any time and from time to time, during normal business hours and upon reasonable prior notice for the purpose of (i) inspecting and/or copying (at the Borrower's expense) any and all records pertaining to the Borrower's business and (ii) discussing the affairs, finances and business of the Borrower with any officers, employees and directors of the Borrower or with the Auditors. Section 4.6 Existence. The Borrower (i) shall maintain its existence --------- as a Texas trust and shall take all actions consistent with the Trust Agreement and necessary to further the purposes thereof, shall maintain in full force and effect all material licenses, bonds, franchise, leases, qualifications to do business, contracts and other rights necessary for the conduct of its businesses and (ii) shall comply in all material respects with all applicable laws and regulations of any federal, state or local governmental authority. Section 4.7 Collateral. The Borrower shall take all necessary actions ---------- to cause Tutogen to deliver to the Lender as soon as practicable after such Advance, but in any event not later than two Business Days thereafter, the certificate representing the shares of Tutogen purchased with the proceeds of such Advance. Section 4.8 Reporting Requirements. The Borrower will promptly file ---------------------- all annual and periodic reports required by the Securities and Exchange Commission. ARTICLE V NEGATIVE COVENANTS The Borrower covenants and agrees that, so long as any Advance shall remain unpaid or the Lender shall have any commitment hereunder, the Borrower shall perform all covenants in this Article V. Section 5.1 Debt and Guarantees. The Borrower shall not create, incur, ------------------- assume or permit to be outstanding any indebtedness for borrowed money or other liabilities, or guarantees thereof, other than pursuant to this Agreement and liabilities for the purchase of goods or services arising in the ordinary course of business. Section 5.2 Restricted Payments. The Borrower will not, directly or ------------------- indirectly, declare or pay any dividend or make any distribution on, or redeem, purchase, or otherwise acquire or retire for value any of its trusts units or otherwise make distributions to its beneficiaries. 5 Section 5.3 Liens. The Borrower will not create, assume or suffer to ----- exist any consensual lien on any asset now owned or hereafter acquired by it. Section 5.4 Consolidations, Mergers and Sales of Assets. The Borrower ------------------------------------------- will not sell, convey, lease or otherwise transfer, directly or indirectly, in whole or in part, any material assets, and will not consolidate or merge with or into any other entity, or acquire any entity or any of its assets. Section 5.5 Business Activities. The Borrower will not engage in any ------------------- business or activities other than as set forth in the Trust Agreement or take any actions in contravention of the Trust Agreement and will not amend, modify or supplement in any manner the Trust Agreement. ARTICLE VI EVENTS OF DEFAULT Section 6.1 Events of Default. The occurrence of any of the following ----------------- events shall constitute an "Event of Default" hereunder: (a) failure of the Borrower to pay any principal, interest or expenses when due, whether at stated maturity, by acceleration or otherwise; (b) failure of the Borrower to perform, comply with or observe any term, covenant or agreement applicable to it contained in Article IV; (c) failure of the Borrower to perform, comply with or observe any term, covenant or agreement applicable to it in Article V and the failure shall continue unremedied until ten (10) Business Days after the delivery by the Lender of notice to the Borrower of such failure; (d) breach by the Borrower of any representation or warranty, or failure to comply with any covenant, contained in this Agreement (other than under a provision covered by subsection (a) or (b) above), or any other agreement, document, instrument or certificate executed by the Borrower in favor of the Lender, which breach or failure shall continue unremedied more than ten (10) Business Days after the Lender's delivery of notice to the Borrower of such breach (such grace period to apply only to the extent such breach or failure is curable within such ten (10) Business Day period); (e) breach by the Borrower of the Agreement dated as of November 17, 2000 between the Borrower and the Lender; (f) the Borrower shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets, or the Borrower shall make a general assignment for the benefit of creditors; or (g) there shall be commenced against the Borrower any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for 60 days after the entry thereof; or (h) there shall be commenced against the Borrower any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal for 60 days; and any court or other governmental authority shall issue a final judgment, order, decree or ruling for the payment of money (a "Judgment") and such Judgment is in an amount (determined after an allowance for the application of any insurance proceeds to such Judgment) in excess of $25,000 and enforcement proceedings shall have been commenced upon any such Judgment or any such Judgment shall remain unpaid after a period of ten (10) consecutive days during which a stay of such enforcement of any such Judgment, including, without limitation, by reason of a pending appeal or otherwise, shall not be in effect. Section 6.2 Acceleration. Upon the occurrence of an Event of Default ------------ which has not been waived by the Lender, the Lender, by delivery of written notice to the Borrower from the Lender, may take any or all of the following actions, without prejudice to the rights of the Lender to enforce its claims against the Borrower: declare all or any part of the Advances hereunder to be immediately due and payable, together with all accrued interest thereon (except with respect to any Event of Default set forth in Sections 6.1(e)(f)(g) and (h) hereof, in which case all such Advances, together with all accrued interest thereon, shall automatically become immediately due and payable without the necessity of any notice or other demand) without presentment, demand, protest or any other action or obligation of the Lender, all of which are hereby waived by the Borrower. 6 ARTICLE VII MISCELLANEOUS Section 7.1 Transaction Expenses. The Lender will pay all costs and -------------------- expenses (including reasonable attorney's fees) incurred in connection with the execution of the Pledge Agreement or this Agreement or any amendments, waivers or consents under or in respect of this Agreement or incurred in enforcing, exercising any remedies or defending (or determining whether or how to enforce or defend) any rights under this Agreement or in responding to any subpoena or other legal process or informal investigative demand issued in connection with this Agreement. Section 7.2 No Waiver; Remedies. This Agreement may be amended, and ------------------- the observance of any term hereof may be waived (either retroactively or prospectively), with and only with the written consent of the Borrower and the Lender. No amendment or waiver consented to as provided in this Section 7 will extend to or affect any obligation, covenant, agreement, Event of Default not expressly amended or waived or impair any right, power or remedy consequent thereon. No course of dealing nor any delay on the part of the Lender in exercising any right, power or remedy hereunder shall operate as a waiver of any right, power or remedy; nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided under this Agreement are cumulative and not exclusive of any rights, power or remedies provided by applicable law. Section 7.3 Notices. All notices and communications provided for ------- hereunder shall be in writing and sent (a) by facsimile if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), or (b) by registered or certified mail with return receipt requested (postage prepaid), or (c) by a recognized overnight delivery service (with charges prepaid). Any such notice must be sent: if to the Lender at: Sulzer Medica Usa Holding Co. 3 East Greenway Plaza, Suite 1600 Houston, Texas 77046-0391 Telephone No.: (713) 561-6300 Telecopier No.: (713) 561-6380 Attention: General Counsel e-mail: david.wise@smedica.com With copies to: 7 Shearman & Sterling 555 California Street San Francisco, California 94104 Telephone No.: (415) 616-1100 Telecopier No.: (415) 616-1199 Attention: Peter D. Lyons e-mail: plyons@shearman.com if to the Borrower, to the Borrower at (or such other address as the Borrow shall have specified to the Lender in writing): Thomas W. Pauken, as Liquidating Trustee Capital Partners II, Ltd. Liquidating Trust 5646 Milton Street, Suite 900 Dallas, Texas 75206 Telephone No.: (214) 378-9340 Telecopier No.: (214) 378-9261 e-mail: twpauken@dhc.net with a copy to: John Daniels 6440 North Central Expressway, Suite 503 Dallas, Texas 75206 Telephone No..: (214) 368-9405 Telecopier No.: (214) 368-9094 e-mail: daniels1@airmail.net All notices and other communications provided for under this Section 7 will be deemed given and effective only when actually received. Section 7.4 Successors and Assigns. All covenants and other agreements ---------------------- contained in this Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their respective successors and assigns. Section 7.5 Severability. Any provision of this Agreement that is ------------ prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction. Section 7.6 Counterparts. This Agreement may be executed in any number ------------ of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. Section 7.7 Governing Law. This Agreement shall be governed by, and ------------- construed in accordance with, the laws of the State of Texas. All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in a state or federal court sitting in the State of Texas. Each of the parties to this 8 Agreement (a) consents to submit itself to the personal jurisdiction of any state or federal court in the State of Texas in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (c) agrees that it will not bring any action in relation to this Agreement or any of the other transactions contemplated by this Agreement in any court other than any state or federal court sitting in the State of Texas. Section 7.8 Waiver of Jury Trial. Each of the parties hereto hereby -------------------- waives to the fullest extent permitted by applicable law any right it may have to a trial by jury with respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement. Each of the parties hereto (a) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce that foregoing waiver and (b) acknowledges that it and the other hereto have been induced to enter into this Agreement, as applicable, by, among other things, the mutual waivers and certifications in this Section 7.8. ********** 9 IN WITNESS WHEREOF, the Borrower and the Lender have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written. CAPITAL PARTNERS II, LTD. By: /s/ Thomas W. Pauken ------------------------------ Name: Thomas W. Pauken Title: Liquidating Trustee SULZER MEDICA USA HOLDING CO. By: /s/ David S. Wise ------------------------------ Name: David S. Wise Title: Secretary 10 EX-99.4 4 0004.txt PLEDGE AGREEMENT DATED DECEMBER 20, 2000 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 ------ 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 1 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 ------------------------ 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 ------------------------------ 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 2 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 ------------------------------ 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). 3 SECTION 5. Further Assurances. The Pledgor agrees that at any time ------------------ 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 ------------------------------ 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, -------- ------- 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 -------- ------- 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, -------- ------- 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, 4 (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 5 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 ------------------------- 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 --------------------------------- 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. 6 SECTION 9. Lender May Perform. If the Pledgor fails to perform any ------------------ 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 ------------------- 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 --------------------- 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 7 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 -------- 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 8 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 --------------- 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 --------------------- 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 ---------------------------------------------------- Agreement. This Agreement shall create a continuing security interest in the - --------- 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 9 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 -------------------- 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/ Thomas W. Pauken -------------------------------------------- Name: Thomas W. Pauken Title: Liquidating Trustee 10 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 -------------- --------------- ----------- --------- - ------------------------------------------------------------------------------------------------------------------------------ Warrant #C-16 400,000 $1.25 November 16, 2001 $500,000 - ------------------------------------------------------------------------------------------------------------------------------ Warrant #1 300,000 $1.50 December 31, 2000 $450,000 =============================================================================================================================
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