EXHIBIT 10.33
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Agreement") is made as of the 20th day of
June 2003, by and between SIPEX CORPORATION, a Massachusetts corporation
("Borrower"), and ALONIM INVESTMENTS INC., a Canadian corporation ("Lender").
Capitalized terms used but not defined herein shall have the meanings assigned
thereto in the Purchase Agreement (as defined below).
RECITALS:
WHEREAS, Lender is purchasing a Convertible Secured Note due June 30,
2007 (the "Note") in an aggregate principal amount of $10,560,000 issued and
sold by Borrower to Lender pursuant to that certain Securities Purchase
Agreement of even date herewith by and between Borrower and Lender, as it may be
amended, modified or extended from time to time (the "Purchase Agreement"); and
WHEREAS, in connection with the purchase of the Note, Lender desires to
obtain from Borrower and Borrower desires to grant to Lender a security interest
in certain collateral more particularly described below.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. (a) Grant of Security Interest. Borrower hereby grants a security
interest to Lender in all of its right, title and interest, whether now existing
or hereafter acquired, in all of its accounts (including without limitation
health-care receivables), chattel paper (whether tangible or electronic),
deposit accounts, documents, general intangibles (including without limitation
payment intangibles, and software licenses; but not Intellectual Property),
goods (including without limitation inventory, equipment, fixtures and
accessions, and including Borrower's specialized systems (including its "clean
room" facilities), instruments (including without limitation promissory notes),
investment property, letter-of-credit rights, letters of credit, money, and oil,
gas, or other minerals before extraction and all proceeds and products of the
foregoing, in each case as such terms are defined under the Uniform Commercial
Code as in effect in the State of Massachusetts from time to time (the "Uniform
Commercial Code"). All of the foregoing property of the Borrower shall be
referred to as the "Collateral." To the extent that some of the Collateral is
located in jurisdictions outside of the United States of America, the Borrower
does hereby grant to the Lender a "pledge without dispossession", "commercial
pledge", "hypothec", "nantissement", and/or other form of security interest in
and to the Collateral, as may be permitted by applicable law in such other
jurisdictions. The provisions of Section 4(a) shall apply
to the creation /perfection/registration of such security interests in such
other jurisdictions.
(b) Certain Definitions.
(i) "Intellectual Property" means, collectively, the
Copyrights, the Patents, the Trade Secrets, the Trademarks and
any and all agreements providing for the granting of any right
in or to any of the foregoing.
(ii) "Copyrights" means all United States, state and
foreign copyrights, all mask works fixed in semi-conductor
chip products (as defined under 17 U.S.C. 901 of the U.S.
Copyright Act), whether registered or unregistered, now or
hereafter in force throughout the world, all registrations and
applications therefor , all rights corresponding thereto
throughout the world, all extensions and renewals of any
thereof, the right to xxx for past, present and future
infringements of any of the foregoing, and all proceeds of the
foregoing, including, without limitation, licenses, royalties,
income, payments, claims, damages, and proceeds of suit.
(iii) "Patents" means all United States, state and
foreign patents and applications for letters patent throughout
the world, all reissues, divisions, continuations,
continuations-in-part, extensions, renewals, and
reexaminations of any of the foregoing, all rights
corresponding thereto throughout the world, and all proceeds
of the foregoing including, without limitation, licenses,
royalties, income, payments, claims, damages, and proceeds of
suit and the right to xxx for past, present and future
infringements of any of the foregoing.
(iv) "Trade Secrets" means all trade secrets and all
other confidential or proprietary information and know-how now
or hereafter owned or used in, or contemplated at any time for
use in, the business of Borrower (all of the foregoing being
collectively called a "Trade Secret"), whether or not such
Trade Secret has been reduced to a writing or other tangible
form, including all documents and things embodying,
incorporating, or referring in any way to such Trade Secret,
the right to xxx for past, present and future infringement of
any Trade Secret, and all proceeds of the foregoing,
including, without limitation, licenses, royalties, income,
payments, claims, damages, and proceeds of suit.
(v) "Trademarks" means all United States, state and
foreign trademarks, trade names, corporate names, company
names, business names, fictitious business names, internet
domain names, trade styles, service marks, certification
marks, collective marks, logos, other source or business
identifiers, designs and general intangibles of a like nature,
all registrations and applications for any of the foregoing ,
all extensions or renewals of any of the foregoing, all of the
goodwill of the business connected with the use of and
symbolized by the foregoing, the right to xxx for past,
present and future infringement or dilution of any of the
foregoing or for any injury to goodwill, and all proceeds of
the
foregoing, including, without limitation, licenses, royalties,
income, payments, claims, damages, and proceeds of suit.
2. Secured Indebtedness. The security interest granted hereby shall
secure the prompt payment of all obligations of every nature of Borrower from
time to time owed to Lender under the Note, whether for principal, interest
(including interest which, but for the filing of a petition in bankruptcy with
respect to Borrower, would have accrued on any obligations, whether or not a
claim is allowed against Borrower for such interest in the related bankruptcy
proceeding) (collectively, the "Obligations") and the prompt performance of each
of the covenants and duties under the Transaction Documents (as defined in the
Purchase Agreement).
3. Representations and Warranties of Borrower. Borrower represents,
warrants and agrees as follows:
(a) Borrower is a corporation organized under the laws of the
State of Massachusetts. Borrower's mailing address is 000 Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000.
(b) "Sipex Corporation" is the correct legal name of Borrower
indicated on the public record of Borrower's jurisdiction of
organization which shows Borrower to be organized. Schedule 3(b)
correctly sets forth all names and trade names that the Borrower has
used in the last five (5) years.
(c) Schedule 3(b) also correctly sets forth the chief
executive offices of Borrower over the last five (5) years, the
location of all tangible Collateral and the place where records with
respect to intangible Collateral are maintained and all other locations
in which tangible assets of the Borrower (including, without
limitation, inventory, equipment, books and records) have been
maintained over the past five (5) years.
(d) This Agreement creates a valid and perfected first
priority security interest in the Collateral (except with respect to
Permitted Encumbrances), securing the payment of the Obligations, and
all other filings and other actions necessary or desirable to perfect
and protect such security interest have been duly taken. Except as set
forth on Schedule 3(d) hereto (the "Permitted Encumbrances"), Borrower
is the owner of the Collateral free and clear of any liens and security
interests. Borrower will defend and protect the Collateral against the
claims and demands of all persons other than the holders of the
Permitted Encumbrances.
(e) Schedule 3(e) sets forth the name of each bank at which
Borrower maintains deposit accounts, the state of incorporation of each
such bank, and the account numbers for each deposit account. Schedule
3(e) sets forth all letters of credit under which Borrower is named as
beneficiary, including the name of the issuing bank and the
letter-of-credit number. The Lender has a duly perfected first priority
security interest in all deposit accounts and letter-of-credit rights
of Borrower.
(f) Schedule 3(f) sets forth all third parties ("Bailees")
with possession of any inventory and equipment of Borrower, including
the name and address of such Bailee, a description of the inventory and
equipment in such Bailee's possession, and the location of such
inventory and equipment. Each Bailee has acknowledged that it holds
possession of the inventory and equipment of Borrower for Lender's
benefit, and Lender has a first priority perfected security interest in
such inventory and equipment.
(g) Borrower will pay all costs of filing of financing,
continuation and termination statements with respect to the security
interests created hereby, and Lender is authorized to do all things
that it deems necessary to perfect and continue perfection of the
security interests created hereby and to protect the Collateral.
(h) Not Applicable.
(i) Borrower has exclusive possession and control of the
tangible Collateral.
(j) No authorization, approval or action by, and no notice to
or filing with, any governmental authority or regulator body is
required either (i) for the grant by Borrower of the security interest
granted hereby or for the execution, delivery or performance of this
Agreement by Borrower or (ii) for perfection of or the exercise by
Lender of its rights and remedies hereunder other than the filing of
financing statements in the office of the Secretary of State of the
State of Massachusetts.
4. Further Assurances; Covenants. Borrower covenants and agrees with
Lender as follows:
(a) Borrower agrees that from time to time, at the expense of
Borrower, that it shall promptly authenticate, execute and deliver all
further instruments and documents, and take all further action, that
may be necessary or desirable, or that Lender may reasonably request,
in order to create and/or maintain the validity, perfection or priority
of and protect any security interest granted or purported to be granted
hereby or to enable Lender to exercise and enforce its rights and
remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, Borrower shall: (i) file such financing or
continuation statements, or amendments thereto, and execute and deliver
such other agreements, instruments, endorsements, powers of attorney or
notices, as may be necessary or desirable, or as Lender may reasonably
request, in order to perfect and preserve the security interests
granted or purported to be granted hereby; (ii) at any reasonable time,
upon request by Lender, annex the Collateral to and allow inspection of
the Collateral by Lender, or persons designated by Lender; and (iv) at
Lender's request, appear in and defend any action or proceeding that
may affect Borrower's title to or Lender's security interest in all or
any part of the Collateral.
(b) Borrower hereby authorizes the filing of any financing
statements or continuation statements, and amendments to financing
statements, or any similar document in any jurisdictions and with any
filing offices as Lender may determine, in its
sole discretion, are necessary or advisable to perfect the security
interest granted to Lender herein. Such financing statements may
describe the Collateral in the same manner as described herein or may
contain an indication or description of collateral that describes such
property in any other manner as Lender may determine, in its sole
discretion, is necessary, advisable or prudent to ensure the perfection
of the security interest in the Collateral granted to Lender herein,
including, without limitation, describing such property as "all assets"
or "all personal property, whether now owned or hereafter acquired."
Borrower shall furnish to Lender from time to time statements and
schedules further identifying and describing the Collateral and such
other reports in connection with the Collateral as Lender may
reasonably request, all in reasonable detail.
(c) Not Applicable.
(d) Borrower shall, at any time and from time to time, whether
or not the Official Text of Revised Article 9, 2000 Revision, of the
Uniform Commercial Code promulgated by the American Law Institute and
the National Conference of Commissioners on Uniform State Laws or a
version thereof ("Uniform Revised Article 9") has been adopted in any
particular jurisdiction, take such steps as Lender may reasonably
request for Lender (i) to obtain an acknowledgment, in form and
substance reasonably satisfactory to Lender, of any bailee having
possession of any of the Collateral, stating that the bailee holds
possession of such Collateral on behalf of Lender, (ii) to obtain
"control" of any investment property, deposit accounts,
letter-of-credit rights, or electronic chattel paper (as such terms are
defined by Revised Article 9 with corresponding provisions thereof
defining what constitutes "control" for such items of Collateral), with
any agreements establishing control to be in form and substance
reasonably satisfactory to Lender, and (iii) otherwise to insure the
continued perfection and priority of Lender's security interest in any
of the Collateral and of the preservation of its rights therein,
whether in anticipation of or following the effectiveness of Revised
Article 9 in any jurisdiction. Borrower shall not, at any time, acquire
a "commercial tort claim" (as such term is defined in Revised Article
9) with a claim for damages in excess of $250,000, without the prior
written consent of the Lender, and Borrower shall promptly notify
Lender of its intent to acquire such claim in writing, providing a
reasonable description and summary thereof, and shall execute, upon
request from the Lender, a supplement to this Security Agreement in
form and substance reasonably satisfactory to Lender granting a
security interest in such commercial tort claim to Lender.
(e) Not Applicable.
(f) Except in connection with the contemplated change of state
of incorporation from Massachusetts to Delaware, Borrower shall not
change its name, identity or corporate structure or the jurisdiction
where it is incorporated unless it shall have given Lender at least
thirty (30) days' prior written notice thereof and executed or
authorized, at the request of Lender, such additional financing
statements to be filed in such jurisdictions as Lender may deem
necessary or desirable in its sole discretion, and any amendments to
this Agreement as may be necessary to reflect such change in form
and substance reasonably acceptable to Lender. Borrower hereby
authorizes any additional financing statements that may be filed with
the State of Delaware.
(g) Borrower will not permit any of the Collateral to be
removed from the location specified herein, except for temporary
periods in the normal and customary use thereof, without the prior
written consent of Lender.
(h) Borrower shall notify Lender in writing of any change in
the location of Borrower's principal place of business or the location
of any tangible Collateral or the place(s) where the records concerning
all intangible Collateral are kept or maintained within ten (10) days
of any such change.
(i) Borrower will keep the Collateral in good condition and
repair, will otherwise maintain and keep the Collateral and will pay
and discharge all taxes, levies and other impositions levied thereon as
well as the cost of repairs to or maintenance of same, and will not
permit anything to be done that may impair the value of any of the
Collateral. If Borrower fails to pay such sums, Lender may do so for
Borrower's account and add the amount thereof to the Obligations.
(i) Until the occurrence of an Event of Default, Borrower
shall be entitled to possession of the Collateral and to use the same
in any lawful manner, provided that such use does not cause excessive
wear and tear to the Collateral, cause it to decline in value at an
excessive rate, or violate the terms of any policy of insurance
thereon.
(j) Borrower will not sell, exchange, lease or otherwise
dispose of any of the Collateral or any interest therein without the
prior written consent of Lender. Notwithstanding the foregoing, so long
as an Event of Default has not occurred, Borrower shall have the right
to process and sell Borrower's inventory, equipment and fixtures in the
regular course of business. Lender's security interest hereunder shall
attach to all proceeds of all sales or other dispositions of the
Collateral. If at any time any such proceeds shall be represented by
any instruments, chattel paper or documents of title, then, upon
request, such instruments, chattel paper or documents of title shall be
promptly delivered to Lender and subject to the security interest
granted hereby. If at any time any of Borrower's inventory is
represented by any document of title, such document of title will be
delivered promptly to Lender and subject to the security interest
granted hereby.
(k) Not Applicable.
(l) Borrower will at all times keep the Collateral insured
against all insurable hazards in amounts equal to the full cash value
of the Collateral. Such insurance shall be in such companies as may be
acceptable to Lender, with provisions satisfactory to Lender for
payment of all losses thereunder to Lender as its interests may appear.
If required by Lender, Borrower shall deposit the policies with Lender.
Any money received by Lender under said policies may be applied to the
payment of the Obligations, whether or not due and payable, or at
Lender's option may be delivered by Lender to Borrower for the
purpose of repairing or restoring the Collateral. Borrower assigns to
Lender all right to receive proceeds of insurance not exceeding the
amounts secured hereby, directs any insurer to pay all proceeds
directly to Lender, and appoints Lender Borrower's attorney-in-fact to
endorse any draft or check made payable to Borrower in order to collect
the benefits of such insurance. If Borrower fails to keep the
Collateral insured as required by Lender, Lender shall have the right
to obtain such insurance at Borrower's expense and add the cost thereof
to the Obligations.
(m) Borrower will not permit any liens or security interests
other than those created by this Agreement and the Permitted
Encumbrances or those created in conjunction with purchase money
financing to attach to any of the Collateral, nor permit any of the
Collateral to be levied upon under any legal process, nor permit
anything to be done that may impair the security intended to be
afforded by this Agreement, nor permit any tangible Collateral to
become attached to or commingled with other goods without the prior
written consent of Lender.
(n) Borrower shall keep full and accurate records relating to
the Collateral, and stamp or otherwise xxxx such books and records in
such manner as the Borrower may request in order to reflect the
security interest granted hereby. Borrower shall, promptly upon written
request, provide to Lender all information and evidence it may request
concerning the Collateral in order to enforce the provisions of this
Agreement.
5. Remedies Upon Default. Upon an Event of Default under and as defined
in the Note, Lender may pursue any or all of the following remedies, without any
notice to Borrower except as required below:
(a) Lender may give written notice of default to Borrower,
following which Borrower shall not dispose of, conceal, transfer, sell
or encumber any of the Collateral (including, but not limited to, cash
proceeds) without Lender's prior written consent, even if such
disposition is otherwise permitted hereunder in the ordinary course of
business. Any such disposition, concealment, transfer or sale after the
giving of such notice shall constitute a wrongful conversion of the
Collateral. Lender may obtain a temporary restraining order or other
equitable relief to enforce Borrower's obligation to refrain from so
impairing Lender's Collateral.
(b) Lender may give written notice of default to Borrower,
following which Lender may take possession of any or all of the
Collateral. Borrower hereby consents to Lender's entry into any of
Borrower's premises to repossess Collateral, and specifically consents
to Lender's forcible entry thereto as long as Lender causes no
significant damage to the premises in the process of entry (xxxxxxxx of
locks, cutting of chains and the like do not in themselves cause
"significant" damage for the purposes hereof) and provided that Lender
accomplishes such entry without a breach of the peace.
(c) Lender may dispose of the Collateral at private or public
sale in accordance with the Uniform Commercial Code. Any required
notice of sale shall be
deemed commercially reasonable if given at least five (5) days prior to
sale. Lender may adjourn any public or private sale to a different time
or place without notice or publication of such adjournment, and may
adjourn any sale either before or after offers are received. The
Collateral may be sold in such lots as Lender may elect, in its sole
discretion. Lender may take such action as it may deem necessary to
repair, protect, or maintain the Collateral pending its disposition.
(d) Lender may recover any or all proceeds of accounts from
any bank or other custodian who may have possession thereof. Borrower
hereby authorizes and directs all custodians of Borrower's assets to
comply with any demand for payment made by Lender pursuant to this
Agreement, without the need of confirmation from Borrower and without
making any inquiry as to the existence of an Event of Default or any
other matter. Lender may engage a collection agent to collect accounts
for a reasonable percentage commission or for any other reasonable
compensation arrangement.
(e) Lender may notify any or all account debtors that
subsequent payments must be made directly to Lender or its designated
agent. Such notice may be made over Lender's signature or over
Borrower's name with no signature or both, in Lender's discretion to
the extent consistent with the Uniform Commercial Code. Borrower hereby
authorizes and directs all existing or future account debtors to comply
with any such notice given by Lender, without the need of confirmation
from Borrower and without making any inquiry as to the existence of an
Event of Default or as to any other matter.
(f) Lender may, but shall not be obligated to, take such
measures as Lender may deem necessary in order to collect any or all of
the accounts. Without limiting the foregoing, Lender may institute any
administrative or judicial action that it may deem necessary in the
course of collecting and enforcing any or all of the accounts. Any
administrative or judicial action or other action taken by Lender in
the course of collecting the accounts may be taken by Lender in its own
name or in Borrower's name. Lender may reasonably compromise any
disputed claims and may otherwise enter into reasonable settlements
with account debtors or obligors under the accounts, which compromises
or settlements shall be binding upon Borrower. Lender shall have no
duty to pursue collection of any account, and may abandon efforts to
collect any account after such efforts are initiated.
(g) Lender may, with respect to any account involving
uncompleted performance by Borrower, and with respect to any general
intangible or other Collateral whose value may be preserved by
additional performance on Borrower's part, take such action as Lender
may deem appropriate including, but not limited to, performing or
causing the performance of any obligation of Borrower thereunder, the
making of payments to prevent defaults thereunder, and the granting of
adequate assurances to other parties thereto with respect to future
performance. Lender's action with respect to any such accounts or
general intangibles shall not render Lender liable for further
performance thereunder unless Lender so agrees in writing.
(h) Lender may exercise its lien upon and right of setoff
against any monies, items, credits, deposits or instruments that Lender
may have in its possession and that belong to Borrower or to any other
person or entity liable for the payment of any or all of the
Obligations.
(i) Lender may exercise any right that it may have under any
other document evidencing or securing the Obligations or otherwise
available to Lender at law or equity, including, without limitation,
under the Uniform Commercial Code.
6. Audits and Examinations. Lender shall have the right, at any time,
by its own auditors, accountants or other agents, to examine or audit any of the
books and records of Borrower, or the Collateral, all of which will be made
available upon request, provided, however, that no such examination or audit
shall unreasonably interfere with the operation of Borrower's business. Such
accountants or other representatives of Lender will be permitted to make any
verification of the existence of the Collateral or accuracy of the records that
Lender deems necessary or proper. Any reasonable expenses incurred by Lender in
making such examination, inspection, verification or audit shall be paid by
Borrower promptly on demand and shall constitute part of the Obligations.
7. Termination Statement. Upon receipt of proper written demand
following the payment in full of the Obligations, Lender shall forthwith send a
termination statement with respect to any financing statement filed to perfect
Lender's security interests in any of the Collateral to Borrower or cause such
termination statement to be filed with the appropriate filing officer(s).
8. Power of Attorney. Borrower hereby constitutes Lender or its
designee, as Borrower's attorney-in-fact with power, upon the occurrence and
during the continuance of an Event of Default, to endorse Borrower's name upon
any notes, acceptances, checks, drafts, money orders, or other evidences of
payment or Collateral that may come into either its or Lender's possession; to
sign the name of Borrower on any invoice or xxxx of lading relating to any of
the accounts receivable, drafts against customers, assignments and verifications
of accounts receivable and notices to customers; to send verifications of
accounts receivable; to notify the Post Office authorities to change the address
for delivery of mail addressed to Borrower to such address as Lender may
designate; to execute any document Lender deems necessary or reasonable in order
to perfect and/or maintain the security interests and liens granted herein by
Borrower to Lender; to do all other acts and things necessary to carry out the
purposes of and remedies provided under this Agreement. All acts of said
attorney or designee are hereby ratified and approved, and said attorney or
designee shall not be liable for any acts of commission or omission (other than
acts of gross negligence or willful misconduct), nor for any error of judgment
or mistake of fact or law. This power being coupled with an interest is
irrevocable until all of the Obligations are paid in full and any and all
promissory notes executed in connection therewith are terminated and satisfied.
9. No Waiver; Remedies Cumulative. No failure or delay on the part of
Lender in the exercise of any power, right or privilege hereunder or under any
other Transaction Document
shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other power, right or privilege. All rights, powers and remedies existing
under this Agreement and the other Transaction Documents are cumulative, and not
exclusive of, any rights or remedies otherwise available. Any forbearance or
failure to exercise, and any delay in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be
a waiver thereof, nor shall it preclude the further exercise of any such right,
power or remedy.
10. Expenses. Without duplication of the obligations of Borrower set
forth in the Purchase Agreement, Borrower agrees to reimburse Lender for all
reasonable costs and expenses of Lender (including the reasonable fees and
expenses of legal counsel) in connection with (a) any Event of Default and any
enforcement or collection proceeding resulting therefrom, including all manner
of participation or other involvement with (i) performance by Lender of any
obligations of Borrower that Borrower has refused or failed to perform; (ii)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, or any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement in respect of any of the Collateral, and
for taking care of the Collateral and defending or asserting rights and claims
of Lender in respect thereof, by litigation or otherwise; (iii) judicial or
regulatory proceedings; and (iv) workout, restructuring or other negotiations or
proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (b) the enforcement of this Section,
and all such costs and expenses shall be Obligations entitled to the benefit of
the security interest provided hereunder.
11. Indemnity. (a) Borrower agrees: (i) to defend (subject to
Indemnitees' (as defined below) selection of counsel), indemnify, pay and hold
harmless each of Lender and each of its affiliates and the officers, directors,
trustees, partners, employees, members, representatives and agents of Lender and
each of its affiliates (collectively, "Indemnitees"), from and against any and
all claims, losses and liabilities in any way relating to, growing out of or
resulting from this Agreement and the transactions contemplated hereby
(including without limitation enforcement of this Agreement), except to the
extent such claims, losses or liabilities result from such Indemnitee's gross
negligence or willful misconduct; and (ii) to pay to Lender promptly following
written demand the amount of any and all reasonable costs and reasonable
expenses, including the reasonable fees and expenses of its counsel and of any
experts and agents.
(b) The obligations of Borrower in this Section shall survive
the termination of this Agreement and the discharge of Borrower's other
obligations under this Agreement, the Purchase Agreement and any other
Transaction Documents.
12. Notices. All notices, requests, consents and demands hereunder
shall be made in writing and telecopied or delivered to the intended recipient
at its address and in the manner set forth in the Purchase Agreement and shall
be deemed to have been given at the times specified therein. Each such notice,
request, consent and demand shall be addressed: if to Borrower, to its address
set forth in the Purchase Agreement; and, if to Lender, to its address set forth
in the Purchase Agreement.
13. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of Borrower and
Lender including all persons who become bound as debtor to this Agreement.
Borrower shall not, without the prior written consent of Borrower, assign any
right, duty or obligation hereunder.
14. Severability. If any provision of this Agreement is held invalid,
such invalidity shall not affect the validity or enforceability of the remaining
provisions of this Agreement.
15. Amendments. No amendment or modification hereof shall be effective
except in a writing executed by each of the parties hereto.
16. Survival of Representations and Warranties. All representations and
warranties contained herein or made by or furnished on behalf of Borrower in
connection herewith shall survive the execution and delivery of this Agreement.
17. Counterparts. This Agreement may be executed by facsimile, in any
number of counterparts and by different parties to this Agreement in separate
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.
18. Construction and Interpretation. Should any provision of this
Agreement require judicial interpretation, the parties hereto agree that the
court interpreting or construing the same shall not apply a presumption that the
terms hereof shall be more strictly construed against one party by reason of the
rule of construction that a document is to be more strictly construed against
the party that itself or through its agent prepared the same, it being agreed
that Borrower, Lender and their respective agents have participated in the
preparation hereof.
19. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement
shall be deemed to be a contract made under the laws of the State of California,
and for all purposes shall be, governed by, and considered in accordance with,
the law of the State of California. Each party hereby irrevocably submits to the
non-exclusive jurisdiction of the state and federal courts sitting in Santa
Xxxxx County, California, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement
in any other jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR
ANY TRANSACTION CONTEMPLATED HEREBY.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement,
or have caused this Agreement to be executed as of the date first above written.
BORROWER:
SIPEX CORPORATION
a Massachusetts corporation
/s/ Walid Maghribi
-----------------------
By:
Title: President & CEO
LENDER:
ALONIM INVESTMENTS INC.
a Canadian corporation
/s/ Xxx Xxxxxxxx
-----------------------
By: Xxx Xxxxxxxx
Title: Attorney
