LIMITED GUARANTY
Exhibit
10.41
Execution
Copy
This LIMITED GUARANTY (the “Guaranty”)
is made and entered into as of the 19th day of
December, 2007 by Xxxx X. Xxxxx (“Guarantor”), for the benefit of OccuLogix,
Inc., a Delaware corporation (“Seller”).
RECITALS
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1.
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Guarantor
is the sole stockholder of Solx Acquisition, Inc., a Delaware corporation
(“Buyer”).
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2.
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Pursuant
to a Stock Purchase Agreement (the “Agreement”), dated as of the date
hereof, by and between Buyer and Seller, Buyer has agreed to purchase all
of the issued and outstanding capital stock of Solx, Inc., a wholly owned
Delaware corporation subsidiary of
Seller.
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3.
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Notwithstanding
the assumption by Buyer, pursuant to the Agreement, of liabilities
relating to the business of Solx, Inc. as of December 1, 2007, the
Agreement provides that Seller will cover the payroll of the employees of
Solx, Inc. during the period from December 1, 2007 to December 31, 2007,
inclusive, and that Buyer will reimburse Seller the December Payroll (as
such term is defined in the Agreement) on or before January 15, 2008 (the
“December Payroll Reimbursement Date”). In addition, pursuant
to the Agreement, Buyer is obligated to pay the Pre-paid Expenses (as such
term is defined in the Agreement) on or prior to February 15, 2008 (the
“Pre-paid Expenses Reimbursement Date”). Such obligations of
Buyer, as they may be amended, modified or extended from time to time, are
hereinafter referred to, collectively, as the
“Obligations”.
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NOW, THEREFORE, FOR AND IN
CONSIDERATION of the benefits derived by Guarantor under the Agreement by virtue
of his status as the sole stockholder of Buyer, Guarantor absolutely,
unconditionally and irrevocably guarantees to Seller and its successors and
assigns, the prompt payment by Buyer of the Obligations on the December Payroll
Reimbursement Date and the Pre-paid Expenses Reimbursement Date, as
applicable.
1. Consideration. This
Guaranty is made for good and valuable consideration and in order to induce
Seller to enter into the Agreement. Guarantor acknowledges the
receipt and adequacy of the consideration received by Guarantor for this
Guaranty.
2. Unconditional Nature of
Guaranty.
(a) This
is a guaranty of payment and performance of the Obligations, and not only of
collection. The liability of Guarantor under this Guaranty shall be
primary, direct and immediate and not conditional or contingent upon the pursuit
of any remedies against Buyer or any other person or entity, nor against any
security or liens that may be available to Seller. Seller may proceed
to enforce or collect the Obligations directly against Guarantor without first
proceeding against Buyer, and Guarantor hereby waives any right to require that
an action be brought against Buyer or any other person or entity or to require
that resort be had to any security or liens.
(b) The
liability of Guarantor hereunder shall not be waived, limited, diminished,
discharged or otherwise reduced by: (i) any release, compromise or indulgence
granted by Seller with respect to the Obligations or any of them; (ii) the
release, discharge, addition or substitution of any other guarantor of the
Obligations or any of them; (iii) any modification, discharge or extension of
the Obligations, or any of them, or any amendment, modification, stay or cure of
Seller’s rights that may occur in any bankruptcy or reorganization case or
proceeding concerning Buyer or any other guarantor; (iv) the granting of
forbearance or extension of time to Buyer or any other guarantor; (v) any course
of dealing, delay, abstention, failure, neglect or omission by Seller concerning
the Obligations or any of them; (vi) any agreement or arrangement among Seller
and Buyer or any other guarantor; (vii) the bankruptcy, insolvency, termination
or dissolution of Buyer or any other guarantor; or (viii) any of the Obligations
being illegal, invalid or unenforceable or, for any reason, limited, modified,
voided, released or discharged or subject to any set-off, counterclaim or
defense by Buyer. If any full or partial payment of the Obligations
or any of them is voided, rescinded, limited or otherwise required to be
returned, reversed or disgorged by Seller as a result of any bankruptcy or
reorganization or otherwise, Guarantor’s liability hereunder shall be revived
and reinstated with respect to such payment.
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3.
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Payment of Expenses of
Collection
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Guarantor agrees to pay Seller, on
demand, all expenses, including reasonable attorneys’ fees, paid or incurred by
Seller in enforcing this Guaranty against Guarantor.
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4.
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Waiver of Defenses by
Guarantor
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Guarantor
agrees that his obligations hereunder shall not be affected or impaired by all
or any of the following and hereby waives all and any defense based thereon: (i)
all notices and rights to notice to which he might be entitled as a guarantor,
including notice of acceptance hereof, notice of default and notice of any
action taken by Seller in reliance hereon; (ii) presentment, demand and protest
of any instrument; (iii) all suretyship and equitable defenses; (iv) all rights
of counterclaims, defenses and set-offs against Seller; (v) all claims against
Buyer whether in the nature of subrogation or otherwise as a creditor resulting
from this Guaranty or any payments hereunder; (vi) any statute of limitations in
any action hereunder or for the collection of amounts owing in connection with
the Obligations, or any of them, or the performance thereof; (vii) the
incapacity or lack of authority of Buyer, Guarantor or any other person or
entity or the failure of Seller to file or enforce a claim against the estate
(either in bankruptcy or any other proceeding) of Buyer or Guarantor or any
other person or entity; (viii) any election of remedies by Seller which destroys
or otherwise impairs any subrogation rights of Guarantor or the right of
Guarantor to proceed against Buyer for reimbursement, or both; (ix) the
illegality, invalidity or unenforceability of the Obligations or any of them; or
(x) any other cause or facts similar or dissimilar to the foregoing, it being
the intention that the obligation of Guarantor to guaranty payment of the
Obligations is absolute, unconditional and irrevocable.
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5.
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Representations and
Warranties.
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Guarantor
represents, warrants and covenants to Seller that, as of the date hereof and at
all times hereafter until the Obligations have been satisfied in
full:
(a) This
Guaranty has been duly executed and delivered by Guarantor and constitutes the
legal, valid and binding obligation of Guarantor, enforceable against Guarantor
in accordance with its respective terms, subject to laws of general application
affecting creditors’ rights.
(b) Guarantor
is not contemplating the filing of a petition or proceeding under any state or
federal bankruptcy or insolvency or reorganization laws or the liquidating of
all or a major portion of Guarantor’s property.
(c) The
entering into of the Agreement by Buyer and Seller constitutes a material
economic benefit to Guarantor.
6.
Termination. This
Guaranty will terminate and be of no further force and effect without any action
of Seller upon payment in full of the Obligations.
7.
General
Provisions
(a)
Entire Agreement;
Amendment. This Guaranty sets forth the entire agreement of
Guarantor with respect to the subject matter hereof and supersedes all other
agreements and understandings, whether oral or written, with respect to such
subject matter. The provisions of this Guaranty may be amended,
modified, or waived only by a writing signed by Guarantor and
Seller. No waiver of Seller’s right on any one occasion shall
constitute a continuing waiver or a waiver of any rights for any subsequent
occasion.
(b)
Severability. If
any provision of this Guaranty shall be determined by a court of competent
jurisdiction to be invalid or unenforceable, such determination shall not affect
the remaining provisions of this Guaranty, all of which shall remain in full
force and effect.
(c)
Governing
Law. This Guaranty shall be governed by, and be construed and
enforced in accordance with, the laws of the State of Delaware, without regard
to any conflict of law principles that would require the application of the laws
of another jurisdiction.
(d)
Assignment; Binding
Effect. This Guaranty may not be assigned by either Seller or
Guarantor. The provisions of this Guaranty shall be binding upon
Guarantor and its successors and assigns and shall inure to the benefit of
Seller and his successors and assigns.
(f)
Captions.
Captions are used for convenience of reference only and are not to be construed
as part of the terms of this Guaranty.
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Executed
under seal as of the day and year first above written.
Witness:
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“Xxxx X.
Xxxxx”
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Xxxx X. Xxxxx |
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