Exhibit 10.4
FORM OF GUARANTY
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1. Identification.
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This Guaranty (the "Guaranty"), dated as of November16, 2006, is
entered into by Stem Cell Innovations BV, a Netherlands corporation, Amphioxus
Cell Technologies, Inc., a Delaware corporation (each a "Guarantor"), for the
benefit of the parties identified on Schedule A hereto (each a "Lender" and
collectively, the "Lenders").
2. Recitals.
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2.1 Guarantor is a direct or indirect subsidiary of Stem Cell
Innovations, Inc., a Delaware corporation ("Parent"). The Lenders have made, are
making and will be making loans to Parent (the "Loans"). Guarantor will obtain
substantial benefit from the proceeds of the Loans.
2.2 The Loans are and will be evidenced by certain promissory
Notes (collectively, "Note" or "Notes") issued by Parent on, about or after the
date of this Guaranty pursuant to subscription agreements dated at or about the
date hereof ("Subscription Agreements"). The Notes are further identified on
Schedule A hereto and were and will be executed by Parent as "Borrower" or
"Debtor" for the benefit of each Lender as the "Holder" or "Lender" thereof.
2.3 In consideration of the Loans made and to be made by Lenders
to Parent and for other good and valuable consideration, and as security for the
performance by Parent of its obligations under the Notes and as security for the
repayment of the Loans and all other sums due from Debtor to Lenders arising
under the Notes, Subscription Agreements and any other agreement between or
among them relating to the foregoing (collectively, the "Obligations"),
Guarantor, for good and valuable consideration, receipt of which is
acknowledged, has agreed to enter into this Guaranty. Obligations include all
future advances by Lenders to Parent made by Lenders pursuant to the
Subscription Agreement.
2.4 The Lenders have appointed Xxxxxxx X. Xxxxxxx as Collateral
Agent pursuant to that certain Collateral Agent Agreement dated at or about the
date of this Agreement ("Collateral Agent Agreement"), among the Lenders and
Collateral Agent.
3. Guaranty.
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3.1 Guaranty. Guarantor hereby unconditionally and irrevocably
guarantees, jointly and severally with any other Guarantor, the punctual
payment, performance and observance when due, whether at stated maturity, by
acceleration or otherwise, of all of the Obligations now or hereafter existing,
whether for principal, interest (including, without limitation, all interest
that accrues after the commencement of any insolvency, bankruptcy or
reorganization of Parent, whether or not constituting an allowed claim in such
proceeding), fees, commissions, expense reimbursements, liquidated damages,
indemnifications or otherwise (such obligations, to the extent not paid by
Parent being the "Guaranteed Obligations"), and agrees to pay any and all
reasonable costs, fees and expenses (including reasonable counsel fees and
expenses) incurred by Collateral Agent and the Lenders in enforcing any rights
under the guaranty set forth herein. Without limiting the generality of the
foregoing, Guarantor's liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be owed by Parent to Collateral
Agent and the Lenders, but for the fact that they are unenforceable or not
allowable due to the existence of an insolvency, bankruptcy or reorganization
involving Parent.
3.2 Guaranty Absolute. Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Notes,
regardless of any law, regulation or order now or hereafter in effect in any
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jurisdiction affecting any of such terms or the rights of Collateral Agent or
the Lenders with respect thereto. The obligations of Guarantor under this
Guaranty are independent of the Guaranteed Obligations, and a separate action or
actions may be brought and prosecuted against Guarantor to enforce such
obligations, irrespective of whether any action is brought against Parent or any
other Guarantor or whether Parent or any other Guarantor is joined in any such
action or actions. The liability of Guarantor under this Guaranty constitutes a
primary obligation, and not a contract of surety, and to the extent permitted by
law, shall be irrevocable, absolute and unconditional irrespective of, and
Guarantor hereby irrevocably waives any defenses it may now or hereafter have in
any way relating to, any or all of the following:
(a) any lack of validity or enforceability of the Notes or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any other
amendment or waiver of or any consent to departure from the Notes, including,
without limitation, any increase in the Guaranteed Obligations resulting from
the extension of additional credit to Parent or otherwise;
(c) any taking, exchange, release, subordination or
non-perfection of any Collateral, or any taking, release or amendment or waiver
of or consent to departure from any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any change, restructuring or termination of the corporate,
limited liability company or partnership structure or existence of Parent; or
(e) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any representation by
Collateral Agent or the Lenders that might otherwise constitute a defense
available to, or a discharge of, Parent or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by Collateral Agent, the Lenders or any other
entity upon the insolvency, bankruptcy or reorganization of the Parent or
otherwise (and whether as a result of any demand, settlement, litigation or
otherwise), all as though such payment had not been made.
3.3 Waiver. Guarantor hereby waives promptness, diligence, notice
of acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that Collateral Agent or the
Lenders or exhaust any right or take any action against any Borrower or any
other person or entity or any Collateral. Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated herein and that the waiver set forth in this Section 3.3 is
knowingly made in contemplation of such benefits. Guarantor hereby waives any
right to revoke this Guaranty, and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, whether existing now or in
the future.
3.4 Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
later of the indefeasible cash payment in full of the Guaranteed Obligations and
all other amounts payable under this Guaranty, the Subscription Agreements and
Notes, (b) be binding upon Guarantor, its successors and assigns and (c) inure
to the benefit of and be enforceable by the Lenders and their successors,
pledgees, transferees and assigns. Without limiting the generality of the
foregoing clause (c), any Lender may pledge, assign or otherwise transfer all or
any portion of its rights and obligations under this Guaranty (including,
without limitation, all or any portion of its Notes owing to it) to any other
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Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted such Collateral Agent or Lender herein or
otherwise.
3.5 Subrogation. No Guarantor will exercise any rights that it may
now or hereafter acquire against the Collateral Agent or any Lender or other
Guarantor (if any) that arise from the existence, payment, performance or
enforcement of such Guarantor's obligations under this Guaranty, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from the Collateral Agent or any Lender
or other Guarantor (if any), directly or indirectly, in cash or other property
or by set-off or in any other manner, payment or security solely on account of
such claim, remedy or right, unless and until all of the Guaranteed Obligations
and all other amounts payable under this Guaranty shall have been indefeasibly
paid in full in cash.
3.6 Maximum Obligations. Notwithstanding any provision herein
contained to the contrary, Guarantor's liability with respect to the Obligations
shall be limited to an amount not to exceed, as of any date of determination,
the amount that could be claimed by Lenders from Guarantor without rendering
such claim voidable or avoidable under Section 548 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
4. Miscellaneous.
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4.1 Expenses. Guarantor shall pay to the Lenders, on demand, the
amount of any and all reasonable expenses, including, without limitation,
attorneys' fees, legal expenses and brokers' fees, which the Lenders may incur
in connection with exercise or enforcement of any the rights, remedies or powers
of the Lenders hereunder or with respect to any or all of the Obligations.
4.2 Waivers, Amendment and Remedies. No course of dealing by the
Lenders and no failure by the Lenders to exercise, or delay by the Lender in
exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, and no single or partial exercise thereof shall preclude any other or
further exercise thereof or the exercise of any other right, remedy or power of
the Lenders. No amendment, modification or waiver of any provision of this
Guaranty and no consent to any departure by Guarantor therefrom, shall, in any
event, be effective unless contained in a writing signed by the Majority in
Interest (as such term is defined in the Collateral Agent Agreement) or the
Lender or Lenders against whom such amendment, modification or waiver is sought,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. The rights, remedies and powers of
the Lenders, not only hereunder, but also under any instruments and agreements
evidencing or securing the Obligations and under applicable law are cumulative,
and may be exercised by the Lenders from time to time in such order as the
Lenders may elect.
4.3 Notices. All notices or other communications given or made
hereunder shall be in writing and shall be personally delivered or deemed
delivered the first business day after being faxed (provided that a copy is
delivered by first class mail) to the party to receive the same at its address
set forth below or to such other address as either party shall hereafter give to
the other by notice duly made under this Section:
To Parent and
Guarantor, to: Stem Cell Innovations, Inc.
0000 Xxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxx Xxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxx, CEO
Fax: (000) 000-0000
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With an additional copy by
telecopier only to: Xxxxxxxxx & Kahr
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
To Lenders: To the addresses and telecopier
numbers set forth on Schedule A
To the Collateral Agent: Xxxxxxx X. Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: (212) 697-357
If to Parent, Guarantor, Lender or
Collateral Agent, with a copy by telecopier only to:
Grushko & Xxxxxxx, P.C.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Any party may change its address by written notice in accordance with this
paragraph.
4.4 Term; Binding Effect. This Guaranty shall (a) remain in full
force and effect until payment and satisfaction in full of all of the
Obligations; (b) be binding upon Guarantor and its successors and permitted
assigns; and (c) inure to the benefit of the Lenders and their respective
successors and assigns. All the rights and benefits granted by Guarantor to the
Collateral Agent and Lenders hereunder and other agreements and documents
delivered in connection therewith are deemed granted to both the Collateral
Agent and Lenders. Upon the payment in full of the Obligations, (i) this
Guaranty shall terminate and (ii) the Lenders will, upon Guarantor's request and
at Guarantor's expense, execute and deliver to Guarantor such documents as
Guarantor shall reasonably request to evidence such termination, all without any
representation, warranty or recourse whatsoever.
4.5 Captions. The captions of Paragraphs, Articles and Sections in
this Guaranty have been included for convenience of reference only, and shall
not define or limit the provisions hereof and have no legal or other
significance whatsoever.
4.6 Governing Law; Venue; Severability. This Guaranty shall be
governed by and construed in accordance with the laws of the State of New York
without regard to principles of conflicts or choice of law. Any legal action or
proceeding against Guarantor with respect to this Guaranty may be brought in the
courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Guaranty, Guarantor
hereby irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts. Guarantor hereby
irrevocably waives any objection which they may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising out of or
in connection with this Guaranty brought in the aforesaid courts and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
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an inconvenient forum. If any provision of this Guaranty, or the application
thereof to any person or circumstance, is held invalid, such invalidity shall
not affect any other provisions which can be given effect without the invalid
provision or application, and to this end the provisions hereof shall be
severable and the remaining, valid provisions shall remain of full force and
effect.
4.7 Satisfaction of Obligations. For all purposes of this
Guaranty, the payment in full of the Obligations shall be conclusively deemed to
have occurred when either the Obligations have been indefeasibly paid in cash or
all outstanding Notes have been converted to common stock pursuant to the terms
of the Notes and the Subscription Agreements.
4.8 Counterparts/Execution. This Agreement may be executed in any
number of counterparts and by the different signatories hereto on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument. This
Agreement may be executed by facsimile signature and delivered by facsimile
transmission.
[THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed and delivered this
Guaranty, as of the date first written above.
"GUARANTOR" "GUARANTOR"
STEM CELL INNOVATIONS BV AMPHIOXUS CELL TECHNOLOGIES
a Netherlands corporation INC.
a Delaware corporation
By: _________________________________ By: __________________________________
Its: _________________________________ Its: _________________________________
APPROVED BY "LENDERS":
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ALPHA CAPITAL ANSTALT
By:____________________________________
Print Name of Signator:________________
This Guaranty Agreement may be signed by facsimile
signature and delivered by confirmed facsimile transmission.
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SCHEDULE A TO GUARANTY
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LENDER PRINCIPAL AMOUNT OF NOTE TO BE
ISSUED ON CLOSING DATE
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ALPHA CAPITAL ANSTALT $1,000,000.00
Xxxxxxxxx 0
0000 Xxxxxxxxxxx
Xxxxx, Xxxxxxxxxxxx
Fax: 000-00-00000000
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