EXHIBIT E STOCK PURCHASE AND LOAN OPTION AGREEMENT SECURITY AGREEMENT
EXHIBIT
10.6
EXHIBIT
E
SECURITY
AGREEMENT
THIS
SECURITY AGREEMENT (this “Agreement”),
dated
as of May 30, 2005, by and between MR3 Systems, Inc., a Delaware
corporation (“Borrower”),
and
MRD Holdings Inc. (“Lender”),
pursuant to a Stock Purchase and Loan Option Agreement dated May 30, 2005,
between Borrower and Lender (the “Purchase Agreement”).
W
I T N E S S E T H:
WHEREAS,
all capitalized terms not otherwise defined herein shall have the same meanings
as defined in the Purchase Agreement.
WHEREAS,
pursuant to the Purchase Agreement, the Lender loaned to Borrower the principal
amount of $4,500,000 pursuant to the Convertible Promissory Notes (the
“Notes”)
described in the Purchase Agreement.
WHEREAS,
in order to induce the Lender to complete the transaction contemplated by
the
Purchase Agreement, Borrower has agreed to execute and deliver to Lender
this
Agreement for the benefit of Lender and to grant to it a first priority security
interest in certain property of the Borrower to secure the prompt payment,
performance and discharge in full of all of the obligations under this Agreement
and the Notes.
NOW,
THEREFORE, in consideration of the agreements herein contained and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby
acknowledged, the parties hereto hereby agree as follows:
1. Certain
Definitions. As used in this Agreement, the following terms shall have the
meanings set forth in this Section 1. Terms used but not otherwise defined
in
this Agreement that are defined in Article 9 of the UCC (such as “general
intangibles” and “proceeds”) shall have the respective meanings given
such terms in Article 9 of the UCC.
(a) “Collateral”
means
the collateral in which Lender is are granted a security interest by this
Agreement and which shall include the following, whether presently owned
or
existing or hereafter acquired or coming into existence, and all additions
and
accessions thereto and all substitutions and replacements thereof, and all
proceeds, products and accounts thereof, including, without limitation, all
proceeds from the sale or transfer of the Collateral and of insurance covering
the same and of any tort claims in connection therewith:
(i) All
Goods
of Borrower , including, without limitations, all machinery, equipment,
computers, vehicles, trucks, appliances, furniture, special and general tools,
fixtures, test and quality control devices and other equipment of every kind
and
nature and wherever situated, together with all documents of title and documents
representing the same, all additions and accessions thereto, replacements
therefor, all parts therefor, and all substitutes for any of the foregoing
and
all other items used and useful in connection with Borrower’s businesses and all
improvements thereto (collectively, the “Equipment”);
and
(ii) All
Inventory of Borrower ; and
-1-
(iii) All
of
Borrower’s contract rights and general intangibles, including, without
limitation, all partnership interests, stock or other securities, licenses,
distribution and other agreements, computer software development rights,
leases,
franchises, customer lists, quality control procedures, grants and rights,
goodwill, trademarks, service marks, trade styles, trade names, patents,
patent
applications, copyrights, deposit accounts, and income tax refunds
(collectively, the “General
Intangibles”);
and
(iv) All
Receivables of Borrower including all insurance proceeds, and rights to refunds
or indemnification whatsoever owing, together with all instruments, all
documents of title representing any of the foregoing, all rights in any
merchandising, goods, equipment, motor vehicles and trucks which any of the
same
may represent, and all right, title, security and guaranties with respect
to
each Receivable, including any right of stoppage in transit; and
(v) All
Intellectual Property of Borrower; and
(vi) All
of
Borrower’s documents, instruments and chattel paper, files, records, books of
account, business papers, computer programs and the products and proceeds
of all
of the foregoing Collateral set forth in clauses (i)-(iv) above.
(b) “Company”
shall
mean, collectively, and all of the subsidiaries of Company, a list of which
is
contained in Schedule
A,
attached hereto.
(c) “Obligations”
means
all of Borrower’s obligations under this Agreement and all obligations of
Borrower (and any successor or assign of Borrower ) under the Notes and the
Purchase Agreement, in each case, whether now or hereafter existing, voluntary
or involuntary, direct or indirect, absolute or contingent, liquidated or
unliquidated, whether or not jointly owed with others, and whether or not
from
time to time decreased or extinguished and later decreased, created or incurred,
and all or any portion of such obligations or liabilities that are paid,
to the
extent all or any part of such payment is avoided or recovered directly or
indirectly from Borrower as a preference, fraudulent transfer or otherwise
as
such obligations may be amended, supplemented, converted, extended or modified
from time to time.
(d) “UCC”
means
the Uniform Commercial Code, as currently in effect in the State of
California.
2. Grant
of
Security Interest.
As an
inducement to complete the transaction contemplated by the Purchase Agreement,
and to secure the complete and timely payment, performance and discharge
in
full, as the case may be, of all of the Obligations, Borrower hereby,
unconditionally and irrevocably, pledges, grants and hypothecates to Lender,
a
continuing security interest in, a continuing lien upon, an unqualified right
to
possession and disposition of and a right of set-off against, in each case
to
the fullest extent permitted by law, all of Borrower’s right, title and interest
of whatsoever kind and nature in and to the Collateral (the “Security
Interest”).
3. Representations,
Warranties, Covenants and Agreements of Borrower.
Borrower represents and warrants to, and covenants and agrees with, Lender
as
follows:
-2-
(a) Borrower
has the requisite power (corporate or otherwise) and authority to enter into
this Agreement and otherwise to carry out its obligations thereunder. The
execution, delivery and performance by Borrower of this Agreement and the
filings contemplated therein have been duly authorized by all necessary action
on the part of Borrower and no further action is required by it. This Agreement
constitutes a legal, valid and binding obligation of Borrower enforceable
in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the
enforcement of creditor’s rights generally.
(b) Borrower
represents and warrants that it has no place of business or offices where
its
respective books of account and records are kept (other than temporarily
at the
offices of its attorneys or accountants) or places where Collateral is stored
or
located, except as set forth on Schedule
A
attached
hereto;
(c) Borrower
is the sole owner of the Collateral, free and clear of any liens, security
interests, encumbrances, rights or claims, and is fully authorized to grant
the
Security Interest in and to pledge the Collateral, except as set forth on
Schedule
C.
There
is not on file in any governmental or regulatory authority, agency or recording
office an effective financing statement, security agreement, license or transfer
or any notice of any of the foregoing (other than those that have been filed
in
favor of Lender pursuant to this Agreement) covering or affecting any of
the
Collateral, except as set forth on Schedule
C.
So long
as this Agreement shall be in effect, Borrower shall not execute and shall
not
knowingly permit to be on file in any such office or agency any such financing
statement or other document or instrument (except to the extent filed or
recorded in favor of Lender pursuant to the terms of this Agreement), except
as
set forth on Schedule
C.
(d) No
part
of the Collateral has been judged invalid or unenforceable. No written claim
has
been received that any Collateral or Borrower’s use of Collateral violates the
rights of any third party. There has been no adverse decision to Borrower’s
claim of ownership rights in or exclusive rights to use the Collateral in
any
jurisdiction or Borrower’s right to keep and maintain such Collateral in full
force and effect, and there is no proceeding involving said rights pending
or,
to the best knowledge of Borrower, threatened before any court, judicial
body,
administrative or regulatory agency, arbitrator or other governmental authority.
(e) Borrower
shall at all times maintain their books of account and records relating to
the
Collateral at Borrower’s principal place of business and the Collateral at the
locations set forth on Schedule
A
attached
hereto and may not relocate such books of account and records or tangible
Collateral unless it delivers to Lender least thirty (30) days prior to such
relocation (i) written notice of such relocation and the new location thereof
(which must be within the United States) and (ii) evidence that appropriate
financing statements and other necessary documents have been filed and recorded
and other steps have been taken to perfect the Security Interest to create
in
favor of Lender valid, perfected and continuing first priority liens in the
Collateral.
(f) This
Agreement creates in favor of Lender a valid security interest in the Collateral
securing the payment and performance of the Obligations and, upon making
the
filings described in the immediately following sentence, a perfected first
priority security interest in such Collateral. Except for the filing of
financing statements on Form-1 under the UCC with the jurisdictions indicated
on
Schedule
B,
attached hereto, no authorization or approval of or filing with or notice
to any
governmental authority or regulatory body is required either (i) for the
grant
by Borrower of, or the effectiveness of, the Security Interest granted hereby
or
for the execution, delivery and performance of this Agreement by Borrower
or
(ii) for the perfection of or exercise by Lender of his rights and remedies
hereunder.
-3-
(g) On
the
date of execution of this Agreement, Borrower will deliver to Lender one
or more
executed UCC financing statements with respect to the Security Interest for
filing with the jurisdictions indicated on Schedule
B,
attached hereto and in such other jurisdictions as may be requested by
Lender.
(h) Except
as
set forth on Schedule C,
the
execution, delivery and performance of this Agreement does not conflict with
or
cause a breach or default, or an event that with or without the passage of
time
or notice, shall constitute a breach or default, under any agreement to which
Borrower is a party or by which Borrower is bound. Except as set forth on
Schedule C,
no
consent (including, without limitation, from stock holders or creditors of
Borrower) is required for Borrower to enter into and perform its obligations
hereunder.
(i) Borrower
shall at all times maintain the liens and Security Interest provided for
hereunder as valid and perfected first priority liens and security interests
in
the Collateral in favor of Lender until this Agreement and the Security Interest
hereunder shall terminate pursuant to Section 11. Borrower hereby
agrees to
defend the same against any and all persons. Borrower shall safeguard and
protect all Collateral for the account of Lender. At the request of Lender,
Borrower will sign and deliver to Lender at any time or from time to time
one or
more financing statements pursuant to the UCC (or any other applicable statute)
in form reasonably satisfactory to Lender and will pay the cost of filing
the
same in all public offices wherever filing is, or is deemed by Lender to
be,
necessary or desirable to effect the rights and obligations provided for
herein.
Without limiting the generality of the foregoing, Borrower shall pay all
fees,
taxes and other amounts necessary to maintain the Collateral and the Security
Interest hereunder, and Borrower shall obtain and furnish to Lender from
time to
time, upon demand, such releases and/or subordinations of claims and liens
which
may be required to maintain the priority of the Security Interest hereunder.
(j) Borrower
will not transfer, pledge, hypothecate, encumber, license, sell or otherwise
dispose of any of the Collateral without the prior written consent of
Lender.
(k) Borrower
shall keep and preserve its Equipment, Inventory and other tangible Collateral
in good condition, repair and order and shall not operate or locate any such
Collateral (or cause to be operated or located) in any area excluded from
insurance coverage.
(l) Borrower
shall, within ten (10) days of obtaining knowledge thereof, advise Lender
promptly, in sufficient detail, of any substantial change in the Collateral,
and
of the occurrence of any event which would have a material adverse effect
on the
value of the Collateral or on Lender’s security interest therein.
-4-
(m) Borrower
shall promptly execute and deliver to Lender such further deeds, mortgages,
assignments, security agreements, financing statements or other instruments,
documents, certificates and assurances and take such further action as Lender
may from time to time request and may in its sole discretion deem necessary
to
perfect, protect or enforce its security interest in the
Collateral.
(n) Borrower
shall permit Lender and its representatives and agents to inspect the Collateral
at any time, and to make copies of records pertaining to the Collateral as
may
be requested by Lender from time to time.
(o) Borrower
will take all steps reasonably necessary to diligently pursue and seek to
preserve, enforce and collect any rights, claims, causes of action and accounts
receivable in respect of the Collateral.
(p) Borrower
shall promptly notify Lender in sufficient detail upon becoming aware of
any
attachment, garnishment, execution or other legal process levied against
any
Collateral and of any other information received by Borrower that may materially
affect the value of the Collateral, the Security Interest or the rights and
remedies of Lender hereunder.
(r) All
information heretofore, herein or hereafter supplied to Lender by or on behalf
of Borrower with respect to the Collateral is accurate and complete in all
material respects as of the date furnished.
(s) Schedule
A
attached
hereto contains a list of all of the subsidiaries of Borrower.
4. Defaults.
The
following events shall be “Events
of Default”:
(a) The
occurrence of an Event of Default (as defined in the Notes);
(b) Any
representation or warranty of Borrower in the Purchase Agreement, or in the
Notes, shall prove to have been incorrect in any material respect when made;
and
(c) The
failure by Borrower to observe or perform any of its obligations hereunder
or in
the Notes or the Purchase Agreement for ten (10) days after receipt by Borrower
of notice of such failure from Lender.
5. Duty
To
Hold In Trust.
Upon
the occurrence of any Event of Default and at any time thereafter, Borrower
shall, upon receipt by it of any revenue, income or other sums subject to
the
Security Interest, whether payable pursuant to the Notes or otherwise, or
of any
check, draft, note, trade acceptance or other instrument evidencing an
obligation to pay any such sum, hold the same in trust for Lender and shall
forthwith endorse and transfer any such sums or instruments, or both, to
Lender
for application to the satisfaction of the Obligations.
6. Rights
and
Remedies Upon Default.
Upon
occurrence of any Event of Default and at any time thereafter, Lender shall
have
the right to exercise all of the remedies conferred hereunder and under the
Notes and Purchase Agreement , and Lender shall have all the rights and remedies
of Lender under the UCC and/or any other applicable law (including the Uniform
Commercial Code of any jurisdiction in which any Collateral is then located).
Without limitation, Lender shall have the following rights and
powers:
-5-
(a) Lender
shall have the right to take possession of the Collateral and, for that purpose,
enter, with the aid and assistance of any person, any premises where the
Collateral, or any part thereof, is or may be placed and remove the same,
and
Borrower shall assemble the Collateral and make it available to such Lender
at
places which such Lender shall reasonably select, whether at Borrower’s premises
or elsewhere, and make available to such Lender, without rent, all of Borrower’s
respective premises and facilities for the purpose of such Lender taking
possession of, removing or putting the Collateral in saleable or disposable
form.
(b)
Lender
shall have the right to operate the business of Borrower using the Collateral
and shall have the right to assign, sell, lease or otherwise dispose of and
deliver all or any part of the Collateral, at public or private sale or
otherwise, either with or without special conditions or stipulations, for
cash
or on credit or for future delivery, in such parcel or parcels and at such
time
or times and at such place or places, and upon such terms and conditions
as such
Lender may deem commercially reasonable, all without (except as shall be
required by applicable statute and cannot be waived) advertisement or demand
upon or notice to Borrower or right of redemption of Borrower, which are
hereby
expressly waived. Upon each such sale, lease, assignment or other transfer
of
Collateral, Lender may, unless prohibited by applicable law which cannot
be
waived, purchase all or any part of the Collateral being sold, free from
and
discharged of all trusts, claims, right of redemption and equities of Borrower,
which are hereby waived and released.
7. Applications
of
Proceeds.
The
proceeds of any such sale, lease or other disposition of the Collateral
hereunder shall be applied first, to the expenses of retaking, holding, storing,
processing and preparing for sale, selling, and the like (including, without
limitation, any taxes, fees and other costs incurred in connection therewith)
of
the Collateral, to the reasonable attorneys’ fees and expenses incurred by
Lender in enforcing its rights hereunder and in connection with collecting,
storing and disposing of the Collateral, and then to satisfaction of the
Obligations and to the payment of any other amounts required by applicable
law,
after which Lender shall pay to Borrower any surplus proceeds. If, upon the
sale, license or other disposition of the Collateral, the proceeds thereof
are
insufficient to pay all amounts to which Lender is legally entitled, Borrower
will be liable for the deficiency, together with interest thereon, at the
rate
of fifteen percent (15%) per annum (the “Default
Rate”),
and
the reasonable fees of any attorneys employed by Lender to collect such
deficiency. To the extent permitted by applicable law, Borrower waives all
claims, damages and demands against Lender arising out of the repossession,
removal, retention or sale of the Collateral, unless due to the gross negligence
or willful misconduct of a Lender.
8. Costs
and
Expenses.
Borrower agrees to pay all out-of-pocket fees, costs and expenses incurred
in
connection with any filing required hereunder, including without limitation,
any
financing statements, continuation statements, partial releases and/or
termination statements related thereto or any expenses of any searches
reasonably required by Lender. Borrower shall also pay all other claims and
charges which in the reasonable opinion of Lender might prejudice, imperil
or
otherwise affect the Collateral or the Security Interest therein. Borrower
will
also, upon demand, pay to 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 Lender may incur in connection with (i) the enforcement
of
this Agreement, (ii) the custody or preservation of, or the sale of, collection
from, or other realization upon, any of the Collateral, or (iii) the exercise
or
enforcement of any of the rights of Lender under the Notes. Until so paid,
any
fees payable hereunder shall be added to the principal amount of the Notes
and
shall bear interest at the Default Rate.
-6-
9. Responsibility
for
Collateral.
Borrower assumes all liabilities and responsibility in connection with all
Collateral, and the obligations of Borrower hereunder or under the Notes
shall
in no way be affected or diminished by reason of the loss, destruction, damage
or theft of any of the Collateral or its unavailability for any reason.
10. Security
Interest Absolute.
All
rights of Lender and all Obligations of Borrower hereunder, shall be absolute
and unconditional, irrespective of: (a) any lack of validity or
enforceability of this Agreement, the Purchase Agreement and/or the Notes,
or
any agreement entered into in connection with the foregoing, or any portion
hereof or thereof; (b) any change in the time, manner or place of payment
or
performance of, or in any other term of, all or any of the Obligations, this
Agreement, the Purchase Agreement or any other amendment or waiver of or
any
consent to any departure from the Notes, this Agreement, or any other agreement
entered into in connection with the foregoing; (c) any exchange, release
or
nonperfection of any of the Collateral, or any release or amendment or waiver
of
or consent to departure from any other collateral for, or any guaranty, or
any
other security, for all or any of the Obligations; (d) any action by Lender
to
obtain, adjust, settle and cancel in its sole discretion any insurance claims
or
matters made or arising in connection with the Collateral; or (e) any other
circumstance which might otherwise constitute any legal or equitable defense
available to Borrower, or a discharge of all or any part of the Security
Interest granted hereby. Until the Obligations shall have been paid and
performed in full, the rights of Lender shall continue even if the Obligations
are barred for any reason, including, without limitation, the running of
the
statute of limitations or bankruptcy. Borrower expressly waives presentment,
protest, notice of protest, demand, notice of nonpayment and demand for
performance. In the event that at any time any transfer of any Collateral
or any
payment received by Lender hereunder shall be deemed by final order of a
court
of competent jurisdiction to have been a voidable preference or fraudulent
conveyance under the bankruptcy or insolvency laws of the United States,
or
shall be deemed to be otherwise due to any party other than Lender, then,
in any
such event, Borrower’s obligations hereunder shall survive cancellation of this
Agreement, and shall not be discharged or satisfied by any prior payment
thereof
and/or cancellation of this Agreement, but shall remain a valid and binding
obligation enforceable in accordance with the terms and provisions hereof.
Borrower waives all right to require Lender to proceed against any other
person
or to apply any Collateral which Lender may hold at any time, or to marshal
assets, or to pursue any other remedy. Borrower waives any defense arising
by
reason of the application of the statute of limitations to any obligation
secured hereby.
11. Term
of
Agreement.
This
Agreement and the Security Interest shall terminate on the date on which
all
payments under the Notes have been made in full and all other Obligations
have
been paid or discharged. Upon such termination, Lender, at the request and
at
the expense of Borrower, will join in executing any termination statement
with
respect to any financing statement executed and filed pursuant to this
Agreement.
-7-
12. Power
of
Attorney; Further Assurances.
(a) Borrower
authorizes Lender, and does hereby make, constitute and appoint it, and its
respective officers, agents, successors or assigns with full power of
substitution, as Borrower’s true and lawful attorney-in-fact, with power, in its
own name or in the name of Borrower, to, after the occurrence and during
the
continuance of an Event of Default, (i) endorse any notes, checks, drafts,
money
orders, or other instruments of payment (including payments payable under
or in
respect of any policy of insurance) in respect of the Collateral that may
come
into possession of Lender; (ii) to sign and endorse any UCC financing statement
or any invoice, freight or express xxxx, xxxx of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications and notices
in
connection with accounts, and other documents relating to the Collateral;
(iii)
to pay or discharge taxes, liens, security interests or other encumbrances
at
any time levied or placed on or threatened against the Collateral; (iv) to
demand, collect, receipt for, compromise, settle and xxx for monies due in
respect of the Collateral; and (v) generally, to do, at the option of Lender,
and at Borrower’s expense, at any time, or from time to time, all acts and
things which Lender deems necessary to protect, preserve and realize upon
the
Collateral and the Security Interest granted therein in order to effect the
intent of this Agreement and the Notes, all as fully and effectually as Borrower
might or could do; and Borrower hereby ratifies all that said attorney shall
lawfully do or cause to be done by virtue hereof. This power of attorney
is
coupled with an interest and shall be irrevocable for the term of this Agreement
and thereafter as long as any of the Obligations shall be
outstanding.
(b) On
a
continuing basis, Borrower will make, execute, acknowledge, deliver, file
and
record, as the case may be, in the proper filing and recording places in
any
jurisdiction, including, without limitation, the jurisdictions indicated
on
Schedule
B,
attached hereto, all such instruments, and take all such action as may
reasonably be deemed necessary or advisable, or as reasonably requested by
Lender, to perfect the Security Interest granted hereunder and otherwise
to
carry out the intent and purposes of this Agreement, or for assuring and
confirming to Lender the grant or perfection of a security interest in all
the
Collateral.
(c) Borrower
each hereby irrevocably appoints Lender as its attorney-in-fact, with full
authority in their place and xxxxx and in their name, from time to time in
a
Lender’s discretion, to take any action and to execute any instrument which
Lender may deem necessary or advisable to accomplish the purposes of this
Agreement, including the filing, in its sole discretion, of one or more
financing or continuation statements and amendments thereto, relative to
any of
the Collateral without the signature of Borrower where permitted by
law.
13. Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing, with copies to all the other parties hereto, and shall be deemed
to
have been duly given when (i) if delivered by hand, upon receipt, (ii) if
sent
by facsimile, upon receipt of proof of sending thereof, (iii) if sent by
nationally recognized overnight delivery service (receipt requested), the
next
business day or (iv) if mailed by first-class registered or certified mail,
return receipt requested, postage prepaid, four days after posting in the
U.S.
mails, in each case if delivered to the following addresses:
-8-
EXHIBIT
E
|
If
to Borrower:
|
MR3
Systems, Inc., a Delaware corporation
|
| 000 Xxxxxxx Xxxxxx Xxxxx 000 |
| Xxx Xxxxxxxxx, XX 00000 |
| Attention: Xxxxxxx X. Xxx, Ph.D., CEO |
| Facsimile: (000) 000-0000 |
|
If
to the Lender:
|
MRD
Holdings Inc., a Delaware corporation
|
| The Naaman’s Building Suite 206 |
| 305 Silverside Rd., DE 19810 |
| Wilmington, Delaware USA |
| Attention: Xxxxxxx X. X. Xxxx |
| Facsimile: (____)___________________ |
14. Other
Security.
To the
extent that the Obligations are now or hereafter secured by property other
than
the Collateral or by the guarantee, endorsement or property of any other
person,
firm, corporation or other entity, then Lender shall have the right, in
its sole
discretion, to pursue, relinquish, subordinate, modify or take any other
action
with respect thereto, without in any way modifying or affecting any of
such
Lender’s rights and remedies hereunder.
15. Miscellaneous.
(a) No
course
of dealing between the parties, nor any failure to exercise, nor any delay
in
exercising, on the part of Lender, any right, power or privilege hereunder
or
under the Notes shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or thereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
(b) All
of
the rights and remedies of Lender with respect to the Collateral, whether
established hereby or by the Notes or by any other agreements, instruments
or
documents or by law shall be cumulative and may be exercised singly or
concurrently.
(c) This
Agreement constitutes the entire agreement of the parties with respect to
the
subject matter hereof and is intended to supersede all prior negotiations,
understandings and agreements with respect thereto. Except as specifically
set
forth in this Agreement, no provision of this Agreement may be modified or
amended except by a written agreement specifically referring to this Agreement
and signed by the parties hereto.
(d) In
the
event that any provision of this Agreement is held to be invalid, prohibited
or
unenforceable in any jurisdiction for any reason, unless such provision is
narrowed by judicial construction, this Agreement shall, as to such
jurisdiction, be construed as if such invalid, prohibited or unenforceable
provision had been more narrowly drawn so as not to be invalid, prohibited
or
unenforceable. If, notwithstanding the foregoing, any provision of this
Agreement is held to be invalid, prohibited or unenforceable in any
jurisdiction, such provision, as to such jurisdiction, shall be ineffective
to
the extent of such invalidity, prohibition or unenforceability without
invalidating the remaining portion of such provision or the other provisions
of
this Agreement and without affecting the validity or enforceability of such
provision or the other provisions of this Agreement in any other
jurisdiction.
-9-
EXHIBIT
E
STOCK
PURCHASE AND LOAN OPTION AGREEMENT
(e) No
waiver
of any breach or default or any right under this Agreement shall be considered
valid unless in writing and signed by the party giving such waiver, and no
such
waiver shall be deemed a waiver of any subsequent breach or default or right,
whether of the same or similar nature or otherwise.
(f) This
Agreement shall be binding upon and inure to the benefit of each party hereto
and its successors and assigns.
(g) Each
party shall take such further action and execute and deliver such further
documents as may be necessary or appropriate in order to carry out the
provisions and purposes of this Agreement.
(h) This
Agreement shall be construed in accordance with the laws of the State of
California, except to the extent the validity, perfection or enforcement
of a
security interest hereunder in respect of any particular Collateral which
are
governed by a jurisdiction other than the State of California in which case
such
law shall govern. Each of the parties hereto irrevocably submit to the exclusive
jurisdiction of any California State or United States Federal court sitting
in
the County of San Francisco over any action or proceeding arising out of
or
relating to this Agreement, and the parties hereto hereby irrevocably agree
that
all claims in respect of such action or proceeding may be heard and determined
in such California State or Federal court. The parties hereto agree that
a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. The parties hereto further waive any objection to venue
in the
State of California and any objection to an action or proceeding in the State
of
California on the basis of forum non conveniens. The parties further agree
that
the successful or prevailing party in any proceeding shall be entitled to
recover reasonable attorneys’ fee and other costs incurred in such proceeding.
(i) 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 Agreement. In the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid
binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
(Signature
page follows.)
-10-
EXHIBIT
E
STOCK
PURCHASE AND LOAN OPTION AGREEMENT
IN
WITNESS WHEREOF, the parties hereto have caused this Security Agreement to
be
duly executed on the day and year first above written.
MR3
Systems, Inc., a Delaware corporation
By:
/s/
Xxxxxxx X. Xxx
Print:
Xxxxxxx X. Xxx, Ph.D.
Its:
Chief Executive Officer
MRD
Holdings Inc., a Delaware corporation
By:
/s/
Xxxxxxx
X. X.
Xxxx
Print:
Xxxxxxx X. X. Xxxx
Its:
Managing Director
-11-
EXHIBIT
E
STOCK
PURCHASE AND LOAN OPTION AGREEMENT
SCHEDULE
A
Principal
Place of Business of Borrower:
Locations
Where Collateral is Located or Stored:
List
of subsidiaries of Borrower:
EXHIBIT
E
STOCK
PURCHASE AND LOAN OPTION AGREEMENT
SCHEDULE
B
Jurisdictions:
EXHIBIT
E
STOCK
PURCHASE AND LOAN OPTION AGREEMENT
SCHEDULE
C
None.
