Exhibit 10.8
COLLATERAL AGENT AGREEMENT
This Collateral Agent Agreement (the "Collateral Agreement") is executed
on May 8, 2001, entered into and effective as of the 1st day of January, 2001
(the "Effective Date") by and between Princeton BioMeditech Corporation, a New
Jersey corporation ("PBM"), and Worldwide Medical Corporation, a Delaware
corporation ("Worldwide"). PBM and Worldwide are sometimes collectively referred
to herein as "Parties" and individually as "Party". Capitalized terms not
otherwise defined in this Agreement shall have the meanings ascribed to them in
the Promissory Note (as hereinafter defined).
RECITALS
A. Worldwide has executed a Convertible Secured Promissory Note
dated as of the Effective Date in favor of PBM (the "Promissory
Note"), pursuant to which Worldwide has agreed to pay PBM the
principal amount of $631,513.37.
B. The Promissory Note provides, among other things, that, the
Obligations of Worldwide thereunder shall be secured by, in
part, an aggregate of 1,515,000 shares of Worldwide's Common
Stock (the "Collateral Shares"), to be released to PBM under the
terms of the Promissory Note and the Security Agreement of even
date herewith that is being executed in connection with the
execution of this Collateral Agreement (the "Security
Agreement").
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, PBM and Worldwide, intending to be
legally bound hereby, agree as follows:
1. Appointment of Collateral Agent; Commencement and Termination.
(a) Worldwide and PBM hereby nominate, constitute and
appoint Xxxxxxx X. Xxxx, Esq. as Collateral Agent (the
"Collateral Agent") upon the terms and conditions set
forth in this Agreement, the Promissory Note and the
Security Agreement. It is intended by the Parties and
the Collateral Agent that, to the extent required in
order to perfect PBM's first lien position in the
Collateral Shares, the Collateral Agent shall be deemed
an agent of PBM.
(b) Worldwide shall deliver to the Collateral Agent by no
later than June 8, 2001 a certificate or certificates
representing the Collateral Shares as provided for under
the terms of the Security Agreement. The Collateral
Shares shall not be registered under the Securities Act
of 1933 or any state blue sky law, and shall bear a
restrictive legend so indicating. The number of
Collateral Shares shall be subject to adjustment on the
same terms and conditions as provided for in Section 7
of any of the Warrants issued by Worldwide to PBM in
connection with the issuance of the Promissory Note,
such that whenever there shall be an adjustment in the
securities or number of
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securities that are issuable upon exercise of any such
Warrant, there shall be an adjustment in the number of
Collateral Shares, on the same basis as any adjustment
in the securities issuable upon exercise of any such
Warrant.
(c) The Collateral Agent agrees to act in accordance with
the provisions of the Security Agreement, the Promissory
Note, and this Collateral Agreement. The Collateral
Agent shall be reimbursed by Worldwide promptly upon
submission of an invoice or invoices on a monthly basis
for all of the Collateral Agent's fees at his standard
hourly rates and out-of-pocket expenses incurred in
connection with this Collateral Agreement.
2. General Instructions. Unless and until any of the events or
contingencies specified in this Collateral Agreement shall occur, the Collateral
Agent shall hold and retain in his possession at all times all of the Collateral
Shares.
3. Disposition of the Collateral Shares. The disposition of the
Collateral Shares shall be governed by the Security Agreement.
4. Receipts. Any of the Parties or the Collateral Agent may, at its
option, demand a receipt as a condition of the delivery of any payments, stock
certificates, securities or documents under this Collateral Agreement
5. Liability of the Collateral Agent. The Collateral Agent (which term
for purposes of this Section 5 shall refer to any and all affiliates of the
Collateral Agent) shall not be liable for any error of judgment or for any act
done or omitted by him in good faith, or for anything he may in good faith do or
refrain from doing in connection with this Agreement; nor for any negligence
other than his gross negligence; nor shall the Collateral Agent be answerable
for the default or misconduct of his agents, attorneys or employees, if they be
selected with reasonable care; nor will any liability be incurred by the
Collateral Agent, if, in the event of any dispute or question as to his duties
or obligations under this Agreement, he acts in accordance with advice of his
legal counsel. The Collateral Agent is authorized to act upon any document
believed by him to be genuine and to be signed by one or more of the Parties,
and will incur no liability in so acting.
6. Resignation or Removal of Collateral Agent. The Collateral Agent may
resign at any time, upon thirty (30) days' prior written notice to PBM and
Worldwide, and may be removed by the mutual consent of PBM and Worldwide, upon
at least thirty (30) days' prior notice to the Collateral Agent. Prior to the
effective date of the resignation or removal of the Collateral Agent, or any
successor Collateral Agent, PBM and Worldwide shall appoint a successor
collateral agent to hold the Collateral Shares then held by the Collateral
Agent, and any such successor collateral agent shall execute and deliver to the
predecessor collateral agent and to PBM and Worldwide an instrument accepting
such appointment, and thereupon such successor collateral agent shall, without
further act, become vested with all the rights and powers of the predecessor
collateral agent as if originally named in this Collateral Agreement, and shall
thereafter become subject to the duties of the predecessor collateral agent. If
PBM and Worldwide are unable to agree on a successor collateral agent by the
effective date of the resignation or removal of the Collateral Agent, or any
successor collateral agent, the Collateral Shares then held by the Collateral
Agent or such successor collateral agent shall be deposited
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with a party that shall be selected by Worldwide provided that Worldwide shall
provide a written opinion of its legal counsel (who shall be reasonably
acceptable to PBM) that the holding of the Collateral Shares by such party shall
permit PBM to obtain and maintain a valid perfected first lien position in the
Collateral Shares.
7. Governing Document. In the event that any terms, provisions, rights,
duties, or obligations set forth in this Collateral Agreement should be in
conflict with any terms, provisions, rights, duties, or obligations set forth in
the Promissory Note, the Security Agreement or any agreements collateral
thereto, the terms, provisions, rights, duties, or obligations set forth in the
Security Agreement shall control and the conduct of the Collateral Agent shall
be governed accordingly.
8. Notices. Any notice required to be given under this Collateral
Agreement or which may be given under this Collateral Agreement to any party or
the Collateral Agent shall be in writing and shall be deemed given: (a) upon
receipt if delivered or sent by identified telecopier; or (b) one (1) business
day after being sent via reputable overnight courier, prepaid; (c) or three (3)
business days after being sent by registered or certified mail, postage prepaid,
return receipt requested; or (d) personally delivered to the Parties or the
Collateral Agent at their respective addresses or telecopy numbers set forth
below their respective names on the signature page hereof. Any of the Parties to
this Collateral Agreement and the Collateral Agent may, by notice delivered to
the Collateral Agent or the other Parties, as the case may be, change its
address for purposes of this Agreement.
9. Miscellaneous.
(a) Entire Agreement and Modification. Except as expressly
reserved or otherwise provided herein, this Collateral
Agreement constitutes the entire agreement between the
Parties with regard to its subject matter. The
Collateral Agent shall not be bound by any modification
of this Collateral Agreement unless there is delivered
to the Collateral Agent a written modification signed by
the Parties. No such modification shall, without the
prior written consent of the Collateral Agent, modify
the provisions of this Collateral Agreement relating to
the duties, obligations or rights of the Collateral
Agent.
(b) Words and Phrases. Words and phrases such as "to this
Agreement," "herein," "hereinafter," "hereto," "hereof,"
"hereby," "hereinbelow," and "hereunder" when used with
reference to this Collateral Agreement, refer to this
Collateral Agreement as a whole, unless the context
otherwise requires.
(c) Severability. If any provision of this Collateral
Agreement is determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the
provisions that have not been held invalid or
unenforceable shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
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(d) No Waiver. No failure or delay on the part of either the
Parties of the Collateral Agent, or any of them, in
exercising any right, power or privilege under this
Agreement shall constitute a waiver thereof or of any
other right, power or privilege under this Collateral
Agreement.
(e) Gender and Number. Wherever from the context of this
Collateral Agreement it appears appropriate, each term
stated in either the singular or the plural, and
pronouns stated in either the masculine, feminine or
neuter gender, shall include the masculine, feminine and
neuter.
(f) Consent to Jurisdiction; Choice of Law. Any and all
claims by or against any of the Parties and/or the
Collateral Agent shall be decided under the laws of the
State of California, with venue in Orange County,
California and each of the Parties and the Collateral
Agent hereby consent to the exclusive jurisdiction of,
and agrees not to commence any action in a court other
than, the state and/or federal courts of the State of
California for the purpose of making claims under this
Collateral Agreement. Each Party and the Collateral
Agent irrevocably and unconditionally waives any
objection to the laying of venue in Orange County,
California, in connection with any action that may be
brought hereunder in the state and/or federal courts of
the State of California, and hereby further irrevocably
and unconditionally waives and agrees not to plead or
claim in any such court that any such action brought in
any such court has been brought in an inconvenient form.
(g) Benefit. This Collateral Agreement shall be binding upon
and inure to the benefit of the Parties, the Collateral
Agent, their respective, successors and assigns.
(h) Counterparts. This Collateral Agreement may be executed
by the Parties and the Collateral Agent in separate
counterparts, each of which when so executed and
delivered shall be an original, but all such
counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of
copies hereof each signed by less than all, but
altogether signed by the Collateral Agent and all of the
Parties hereto.
IN WITNESS WHEREOF, the Parties and Collateral Agent have hereunto set their
hands and seals as of the date first above written.
WITNESS WORLDWIDE MEDICAL CORPORATION
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. XxXxxxx, President
(Fax Number: 000-000-0000
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By
---------------------------------- --------------------------------------
Xxxxxx XxXxxxx, President
WITH A COPY TO: XXXXX XXXX LLP
(which shall not 0000 Xxxx Xxxxxx, Xxxxx 000
constitute notice) Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esquire
(Fax Number: 000-000-0000)
WITNESS PRINCETON BIOMEDITECH CORPORATION
0000 X.X. Xxxxx 0
Xxxxxxxx Xxxxxxxx, Xxx
Xxxxxx 00000-0000
Attention: Xx. Xxxx Xxxx
(Fax Number: 000-000-0000)
By
---------------------------------- --------------------------------------
Xxxx Xxxx, President
WITH A COPY TO: FOX, ROTHSCHILD, O'BRIEN & XXXXXXX
(which shall not 000 Xxxxx Xxxxx
constitute notice) Xxxxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esquire
(Fax Number: 000-000-0000)
The undersigned, intending to be legally bound, hereby agrees to act as
Collateral Agent under and pursuant to the terms and conditions of this
Agreement.
WITNESS COLLATERAL AGENT
---------------------------------- ----------------------------------------
Xxxxxxx X. Xxxx, Esq.
Address: 0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
(Fax Number: 000-000-0000)
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