EXHIBIT 99.5
ICORIA, INC.
AMENDED AND RESTATED SECURITY AGREEMENT
To: Laurus Master Fund, Ltd. ("Laurus")
c/o M&C Corporate Services Limited
X.X. Xxx 000 XX
Xxxxxx House
South Church Street
Xxxxxx Town
Grand Cayman, Cayman Islands
Date: October 19, 2004, as amended and restated on August 31, 2006 for
effectiveness as of June 1, 2006
To Whom It May Concern:
WHEREAS, On October 19, 2004, Icoria, Inc., a Delaware corporation
(the "Company" or, the "Assignor") granted to Laurus a security interest in
certain of its assets pursuant to the terms of that certain Security Agreement,
dated as of October 19, 2004 by and between the Company and Laurus (the
"Original Security Agreement"); and
WHEREAS, the Company and Laurus have agreed to amend and restate the
Original Security Agreement in the form hereof in order to incorporate certain
mutually agreed-to terms.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings and the terms and conditions contained herein, the parties hereto
agree as follows:
1. To secure the payment of all Obligations (as hereafter defined), Icoria,
Inc., a Delaware corporation (the "Company" or, the "Assignor") hereby
acknowledges, confirms and agrees that Laurus has and shall continue to have a
security interest in all of the Collateral (as defined below) heretofore granted
by the Company to Laurus pursuant to the Original Security Agreement and assigns
and grants to Laurus a continuing security interest in all of the following
property now owned or at any time hereafter acquired by the Assignor, or in
which the Assignor now has or at any time in the future may acquire any right,
title or interest (the "Collateral"): all cash, cash equivalents, accounts,
accounts receivable, deposit accounts, inventory, equipment, goods, fixtures,
documents, instruments (including, without limitation, promissory notes),
contract rights, commercial tort claims set forth on Exhibit B to this Security
Agreement, general intangibles (including, without limitation, payment
intangibles and an absolute right to license on terms no less favorable than
those current in effect among the Assignor's affiliates), chattel paper,
supporting obligations, investment property (including, without limitation, all
partnership interests, limited liability company membership interests and all
other equity interests owned by any Assignor), letter-of-credit rights,
trademarks, trademark applications, tradestyles, patents, patent applications,
copyrights, copyright applications and other intellectual property in which
Master Security Agreement
:
the Assignor now has or hereafter may acquire any right, title or interest, all
proceeds and products thereof (including, without limitation, proceeds of
insurance) and all additions, accessions and substitutions thereto or therefor.
Except as otherwise defined herein, all capitalized terms used herein shall have
the meanings provided such terms in the Securities Purchase Agreement referred
to below. All items of Collateral which are defined in the UCC shall have the
meanings set forth in the UCC. For purposes hereof, the term "UCC" means the
Uniform Commercial Code as the same may, from time to time, be in effect in the
State of New York; provided, that in the event that, by reason of mandatory
provisions of law, any or all of the attachment, perfection or priority of, or
remedies with respect to, Laurus' security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term "UCC" shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions of
this Agreement relating to such attachment, perfection, priority or remedies and
for purposes of definitions related to such provisions; provided further, that
to the extent that the UCC is used to define any term herein and such term is
defined differently in different Articles or Divisions of the UCC, the
definition of such term contained in Article or Division 9 shall govern.
2. The term "Obligations" as used herein shall mean and include all debts,
liabilities and obligations owing by the Assignor to Laurus arising under, out
of, or in connection with: (i) that certain Securities Purchase Agreement dated
as of the date hereof by and between the Company and Laurus (the "Securities
Purchase Agreement") and (ii) the Related Agreements referred to in the
Securities Purchase Agreement (the Securities Purchase Agreement and each
Related Agreement, , as each may be amended, modified, restated or supplemented
from time to time, collectively, the "Documents"), and in connection with any
documents, instruments or agreements relating to or executed in connection with
the Documents or any documents, instruments or agreements referred to therein or
otherwise, and in connection with any other indebtedness, obligations or
liabilities of the Assignor to Laurus, whether now existing or hereafter
arising, direct or indirect, liquidated or unliquidated, absolute or contingent,
due or not due and whether under, pursuant to or evidenced by a note, agreement,
guaranty, instrument or otherwise, including, without limitation, obligations
and liabilities of the Assignor for post-petition interest, fees, costs and
charges that accrue after the commencement of any case by or against the
Assignor under any bankruptcy, insolvency, reorganization or like proceeding
(collectively, the "Debtor Relief Laws") in each case, irrespective of the
genuineness, validity, regularity or enforceability of such Obligations, or of
any instrument evidencing any of the Obligations or of any collateral therefor
or of the existence or extent of such collateral, and irrespective of the
allowability, allowance or disallowance of any or all of the Obligations in any
case commenced by or against any Assignor under any Debtor Relief Law.
3. The Assignor hereby represents, warrants and covenants to Laurus that:
(a) it is a corporation, partnership or limited liability company, as
the case may be, validly existing, in good standing and formed under the
laws of its jurisdiction of formation, and the Assignor will provide Laurus
thirty (30) days' prior written notice of any change in its jurisdiction of
formation;
(b) its legal name is as set forth in its Certificate of Incorporation
or other organizational document (as applicable) as amended through the
date hereof and as set
Master Security Agreement
:
2
forth in the undersigned signature block for the Assignor, and it will
provide Laurus thirty (30) days' prior written notice of any change in its
legal name;
(c) its Employer Identification Number ("EIN") is 00-0000000, and it
will provide Laurus thirty (30) days' prior written notice of any change in
its EIN;
(d) it is the lawful owner of its Collateral and it has the sole right
to grant a security interest therein and will defend the Collateral against
all claims and demands of all persons and entities;
(e) it will keep its Collateral free and clear of all attachments,
levies, taxes, liens, security interests and encumbrances of every kind and
nature ("Encumbrances"), except (i) Encumbrances securing the Obligations
and (ii) Encumbrances securing indebtedness of the Assignor not to exceed
$100,000 in the aggregate for all the Assignor so long as all such
Encumbrances are removed or otherwise released to Laurus' satisfaction
within ten (10) days of the creation thereof;
(f) it will, at its sole cost and expense keep the Collateral in good
state of repair (ordinary wear and tear excepted) and will not waste or
destroy the same or any part thereof other than ordinary course discarding
of items no longer used or useful in its business;
(g) it will not, without Laurus' prior written consent, sell,
exchange, lease or otherwise dispose of any Collateral, whether by sale,
lease or otherwise, except for the sale of inventory in the ordinary course
of business and for the disposition or transfer in the ordinary course of
business during any fiscal year of obsolete and worn-out equipment or
equipment no longer necessary for its ongoing needs, having an aggregate
fair market value of not more than $100,000 and only to the extent that:
(i) the proceeds of each such disposition are used to acquire
replacement Collateral which is subject to Laurus' first priority
perfected security interest, or are used to repay the Obligations or
to pay general corporate expenses; or
(ii) following the occurrence of an Event of Default which
continues to exist the proceeds of which are remitted to Laurus to be
held as cash collateral for the Obligations;
(h) (i) it will insure or cause the Collateral to be insured in
Laurus' name (as an additional insured and lender loss payee) against loss
or damage by fire, theft, burglary, pilferage, loss in transit and such
other hazards as Laurus shall specify in amounts and under policies by
insurers acceptable to Laurus and all premiums thereon shall be paid by the
Assignor and the policies delivered to Laurus. If the Assignor fails to do
so, Laurus may procure such insurance and the cost thereof shall be
promptly reimbursed by the Assignor and shall constitute Obligations;
Master Security Agreement
:
3
(ii) it will expressly agree that if additional loss payees and/or
lender loss payees, other than Laurus, are named to the Collateral, Laurus
will always be assigned to first lien position until all Laurus obligations
have been met
(i) it will at all reasonable times, with sufficient notice, allow
Laurus or Laurus' representatives free access to and the right of
inspection of the Collateral;
(j) the Assignor hereby indemnifies and saves Laurus harmless from all
loss, costs, damage, liability and/or expense, including reasonable
attorneys' fees, that Laurus may sustain or incur to enforce payment,
performance or fulfillment of any of the Obligations and/or in the
enforcement of this Master Security Agreement or in the prosecution or
defense of any action or proceeding either against Laurus or any Assignor
concerning any matter growing out of or in connection with this Master
Security Agreement, and/or any of the Obligations and/or any of the
Collateral except to the extent caused by Laurus' own gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a
final and nonappealable decision); and
all commercial tort claims (as defined in the Uniform Commercial Code as in
effect in the State of New York) held by any Assignor are set forth on Schedule
A to this Master Security Agreement; the Assignor hereby agrees that it shall
promptly, and in any event within five (5) Business Days after the same is
acquired by it, notify Laurus of any commercial tort claim acquired by it and
unless otherwise consented to in writing by Laurus, it shall enter into a
supplement to this Master Security Agreement granting to Laurus a security
interest in such commercial tort claim, securing the Obligations.the Assignorthe
Assignorthe Assignor
4. The occurrence of any of the following events or conditions shall
constitute an "Event of Default" under this Master Security Agreement:
(a) any covenant or any other term or condition of this Master
Security Agreement is breached in any material respect and such breach, to
the extent subject to cure, shall continue without remedy for a period of
fifteen (15) days after the occurrence thereof;
(b) any representation or warranty, or statement made or furnished to
Laurus under this Master Security Agreement by any Assignor or on any
Assignor's behalf should prove to any time be false or misleading in any
material respect on the date as of which made or deemed made;
(c) the loss, theft, substantial damage, destruction, sale or
encumbrance to or of any of the Collateral or the making of any levy,
seizure or attachment thereof or thereon except to the extent:
(i) such loss is covered by insurance proceeds which are used to
replace the item or repay Laurus; or
(ii) said levy, seizure or attachment does not secure
indebtedness in excess of $200,000 in the aggregate for all Assignors
and such levy, seizure or
Master Security Agreement
:
4
attachment has been removed or otherwise released within thirty (30)
days of the creation or the assertion thereof;
(d) an Event of Default shall have occurred under and as defined in
any Document.
5. Upon the occurrence of any Event of Default and at any time thereafter,
Laurus may declare all Obligations immediately due and payable and Laurus shall
have the remedies of a secured party provided in the UCC as in effect in the
State of New York, this Agreement and other applicable law. Upon the occurrence
of any Event of Default and at any time thereafter, Laurus will have the right
to take possession of the Collateral and to maintain such possession on any
Assignor's premises or to remove the Collateral or any part thereof to such
other premises as Laurus may desire. Upon Laurus' request, the Assignor shall
assemble or cause the Collateral to be assembled and make it available to Laurus
at a place designated by Laurus. If any notification of intended disposition of
any Collateral is required by law, such notification, if mailed, shall be deemed
properly and reasonably given if mailed at least ten (10) days before such
disposition, postage prepaid, addressed to the applicable Assignor either at the
Assignor's address shown herein or at any address appearing on Laurus' records
for the Assignor. Any proceeds of any disposition of any of the Collateral shall
be applied by Laurus to the payment of all expenses in connection with the sale
of the Collateral, including reasonable attorneys' fees and other legal expenses
and disbursements and the reasonable expenses of retaking, holding, preparing
for sale, selling, and the like, and any balance of such proceeds may be applied
by Laurus toward the payment of the Obligations in such order of application as
Laurus may elect, and the Assignor shall be liable for any deficiency. For the
avoidance of doubt, following the occurrence and during the continuance of an
Event of Default, Laurus shall have the immediate right to withdraw any and all
monies contained in any deposit account in the name of any Assignor and
controlled by Laurus and apply same to the repayment of the Obligations (in such
order of application as Laurus may elect). The parties hereto each hereby agree
that the exercise by any party hereto of any right granted to it or the exercise
by any party hereto of any remedy available to it (including, without
limitation, the issuance of a notice of redemption, a borrowing request and/or a
notice of default), in each case, hereunder, under the Securities Purchase
Agreement or under any other Related Agreement which has been publicly filed
with the SEC shall not constitute confidential information and no party shall
have any duty to the other party to maintain such information as confidential.
6. If any Assignor defaults in the performance or fulfillment of any of the
terms, conditions, promises, covenants, provisions or warranties on the
Assignor's part to be performed or fulfilled under or pursuant to this Master
Security Agreement, Laurus may, at its option without waiving its right to
enforce this Master Security Agreement according to its terms, immediately or at
any time thereafter and without notice to any Assignor, perform or fulfill the
same or cause the performance or fulfillment of the same for the Assignor's
account and at the Assignor's joint and several cost and expense, and the cost
and expense thereof (including reasonable attorneys' fees) shall be added to the
Obligations and shall be payable on demand with interest thereon at the highest
rate permitted by law, or, at Laurus' option, debited by Laurus from any other
deposit accounts in the name of any Assignor and controlled by Laurus.
Master Security Agreement
:
5
7. The Assignor appoints Laurus, any of Laurus' officers, employees or any
other person or entity whom Laurus may designate as the Assignor's attorney,
with power to execute such documents in each the Assignor's behalf and to supply
any omitted information and correct patent errors in any documents executed by
any Assignor or on any Assignor's behalf; to file financing statements against
the Assignor covering the Collateral (and, in connection with the filing of any
such financing statements, describe the Collateral as "all assets and all
personal property, whether now owned and/or hereafter acquired" (or any
substantially similar variation thereof)); to sign the Assignor's name on public
records; and to do all other things Laurus deem necessary to carry out this
Master Security Agreement. The Assignor hereby ratifies and approves all acts of
the attorney and neither Laurus nor the attorney will be liable for any acts of
commission or omission, nor for any error of judgment or mistake of fact or law
other than gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision). This power being
coupled with an interest, is irrevocable so long as any Obligations remains
unpaid.
8. No delay or failure on Laurus' part in exercising any right, privilege
or option hereunder shall operate as a waiver of such or of any other right,
privilege, remedy or option, and no waiver whatever shall be valid unless in
writing, signed by Laurus and then only to the extent therein set forth, and no
waiver by Laurus of any default shall operate as a waiver of any other default
or of the same default on a future occasion. Laurus' books and records
containing entries with respect to the Obligations shall be admissible in
evidence in any action or proceeding, shall be binding upon the Assignor for the
purpose of establishing the items therein set forth and shall constitute prima
facie proof thereof. Laurus shall have the right to enforce any one or more of
the remedies available to Laurus, successively, alternately or concurrently. The
Assignor agrees to join with Laurus in executing such documents or other
instruments to the extent required by the UCC in form satisfactory to Laurus and
in executing such other documents or instruments as may be required or deemed
necessary by Laurus for purposes of affecting or continuing Laurus' security
interest in the Collateral.
9. The Assignor shall pay all of Laurus' out-of-pocket costs and expenses,
including reasonable fees and disbursements of in-house or outside counsel and
appraisers, in connection with the preparation, execution and delivery of the
Documents, and in connection with the prosecution or defense of any action,
contest, dispute, suit or proceeding concerning any matter in any way arising
out of, related to or connected with any Document. The Assignor shall pay all of
Laurus' reasonable fees, charges, out-of-pocket costs and expenses, including
fees and disbursements of counsel and appraisers in connection with (a) the
preparation, execution and delivery of any waiver, any amendment thereto or
consent proposed or executed in connection with the transactions contemplated by
the Documents, (b) Laurus' obtaining performance of the Obligations under the
Documents, including, but not limited to the enforcement or defense of Laurus'
security interests, assignments of rights and liens hereunder as valid perfected
security interests, (c) any attempt to inspect, verify, protect, collect, sell,
liquidate or otherwise dispose of any Collateral, (d) any appraisals or
re-appraisals of any property (real or personal) pledged to Laurus by the
Assignor as Collateral for, or any other Person as security for, the Obligations
hereunder and (e) any consultations in connection with any of the foregoing. The
Assignor shall also pay Laurus' customary bank charges for all bank services
(including wire transfers) performed or caused to be performed by Laurus for the
Assignor at the Assignor's request or in
Master Security Agreement
:
6
connection with the Assignor's loan account (if any) with Laurus. All such costs
and expenses together with all filing, recording and search fees, taxes and
interest payable by the Assignor to Laurus shall be payable on demand and shall
be secured by the Collateral. If any tax by any nation or government, any state
or other political subdivision thereof, and any agency, department or other
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government (each, a "Governmental Authority") is
or may be imposed on or as a result of any transaction between the Assignor, on
the one hand, and Laurus on the other hand, which Laurus is or may be required
to withhold or pay, the Assignor hereby indemnifies and holds Laurus harmless in
respect of such taxes, and the Assignor will repay to Laurus the amount of any
such taxes which shall be charged to the Assignor's account; and until the
Assignor shall furnish Laurus with indemnity therefor (or supply Laurus with
evidence satisfactory to it that due provision for the payment thereof has been
made), Laurus may hold without interest any balance standing to the Assignor's
credit (if any) and Laurus shall retain its liens in any and all Collateral.
10. THIS MASTER SECURITY AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS. All of the rights, remedies, options, privileges and
elections given to Laurus hereunder shall inure to the benefit of Laurus'
successors and assigns. The term "Laurus" as herein used shall include Laurus,
any parent of Laurus', any of Laurus' subsidiaries and any co-subsidiaries of
Laurus' parent, whether now existing or hereafter created or acquired, and all
of the terms, conditions, promises, covenants, provisions and warranties of this
Agreement shall inure to the benefit of each of the foregoing, and shall bind
the representatives, successors and assigns of the Assignor.
11. The Assignor hereby consents and agrees that the state of federal
courts located in the County of New York, State of New York shall have exclusive
jurisdiction to hear and determine any claims or disputes between Assignor, on
the one hand, and Laurus, on the other hand, pertaining to this Master Security
Agreement or to any matter arising out of or related to this Master Security
Agreement, provided, that Laurus and the Assignor acknowledges that any appeals
from those courts may have to be heard by a court located outside of the County
of New York, State of New York, and further provided, that nothing in this
Master Security Agreement shall be deemed or operate to preclude Laurus from
bringing suit or taking other legal action in any other jurisdiction to collect,
the Obligations, to realize on the Collateral or any other security for the
Obligations, or to enforce a judgment or other court order in favor of Laurus.
The Assignor expressly submits and consents in advance to such jurisdiction in
any action or suit commenced in any such court, and the Assignor hereby waives
any objection which it may have based upon lack of personal jurisdiction,
improper venue or forum non conveniens. The Assignor hereby waives personal
service of the summons, complaint and other process issues in any such action or
suit and agrees that service of such summons, complaint and other process may be
made by registered or certified mail addressed to the Assignor at the address
set forth on the signature lines hereto and that service so made shall be deemed
completed upon the earlier of the Assignor's actual receipt thereof or three (3)
days after deposit in the U.S. mails, proper postage prepaid.
Master Security Agreement
:
7
The parties desire that their disputes be resolved by a judge applying such
applicable laws. Therefore, to achieve the best combination of the benefits of
the judicial system and of arbitration, the parties hereto waive all rights to
trial by jury in any action, suite, or proceeding brought to resolve any
dispute, whether arising in contract, tort, or otherwise between Laurus, and/or
any Assignor arising out of, connected with, related or incidental to the
relationship established between them in connection with this Master Security
Agreement or the transactions related hereto.
12. All notices from Laurus to any Assignor shall be sufficiently given if
mailed or delivered to the Assignor's address set forth below.
Very truly yours,
ICORIA, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Secretary
Address: Xxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
ACKNOWLEDGED:
LAURUS MASTER FUND, LTD.
By: /s/ Xxxxxx Grin
------------------------------------
Name: Xxxxxx Grin
Title Director
Master Security Agreement
:
8
SCHEDULE A
COMMERCIAL TORT CLAIMS
Master Security Agreement
:
