SECURITY AGREEMENT
Exhibit 10.2
SECURITY AGREEMENT, dated August 12, 2024, by and between
Elicio Therapeutics, Inc., a Delaware corporation, with headquarters located at 000 X Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the “Debtor”), and the
investors set forth on Schedule A hereof (collectively, the “Secured Party”).
Debtor hereby agrees in favor of Secured Party as follows:
1. In consideration for loans made or to be made to Debtor evidenced by the Senior Secured Convertible Promissory Notes of Debtor in the principal amounts set forth on Schedule A hereto, payable to the order of
Secured Party (such Senior Secured Convertible Promissory Notes, as amended, modified, supplemented, replaced or substituted from time to time, being herein referred to as the “Notes”), Debtor hereby grants to Secured Party a continuing
security interest in, lien upon and a right of setoff against, and Debtor hereby assigns to Secured Party, all of Debtor’s right, title and interest in and to the Collateral described in Section 2, to secure the full and prompt payment,
performance and observance of all present and future indebtedness, obligations, liabilities and agreements of any kind of Debtor to Secured Party arising under or in connection with the Notes, which are existing now or hereafter (all of the
foregoing being herein referred to as the “Obligations”).
2. The Collateral is described on Schedule B annexed hereto as part hereof and on any separate schedule(s) identified as Collateral at any time or from time to time furnished by Debtor to Secured Party (all of which
are hereby deemed part of this Security Agreement) and includes claims of Debtor against third parties for loss or damage to or destruction of any Collateral; provided that, until Debtor obtains all consents required in order for Debtor to grant
Secured Party a security interest in Xxxxxx’s intellectual property that is jointly owned by third parties pursuant to Section 8, the Collateral shall not include any intellectual property jointly owned by third parties and any related
licenses or rights (the “Excluded Collateral”).
3. Debtor hereby warrants, represents, covenants and agrees (as of the date hereof and so long as any Obligation remains outstanding) that: (a) the chief executive office of Debtor, the books and records relating to the
Collateral (except for such records as are in the possession or control of Secured Party) and the Collateral are located at 000 X Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and Debtor will not change any of the same, change its name or conduct the business under any trade, assumed or fictitious name without providing at least ten (10) days’ prior written notice
of same to Secured Party (and in the case of the location of Collateral, will from time to time notify Secured Party of the locations thereof), or merge or consolidate with any person without prior written notice to and consent of Secured Party;
(b) the Collateral is and will be used in the business of the Debtor; (c) the Collateral is now, and at all times will be, owned by Debtor free and clear of all liens, security interests, claims and encumbrances, except for Permitted Liens; (d)
Debtor will not abandon or assign, sell, lease, transfer or otherwise dispose of, nor will Debtor suffer or permit any of the same to occur with respect to, any Collateral, without prior written notice to and consent of a designated
representative of the Secured Party, in each case, other than in the ordinary course of Debtor’s business or as permitted by the Securities Purchase Agreement; (e) Debtor will make payment or will provide for the payment, when due, of all taxes,
assessments or contributions or other public or private charges which have been or may be levied or assessed against Debtor, with respect to the Collateral or with respect to any wages or salaries paid by the Debtor (except for any taxes,
assessments, contributions or charges being contested in good faith and as to which adequate reserves have been made or as otherwise would not have a material adverse effect on the Collateral), and will deliver to Secured Party, on demand,
certificates or other evidence reasonably satisfactory to Secured Party attesting thereto; (f) Debtor will use the Collateral for lawful purposes only, with all reasonable care and caution and in conformity in all material respects with all
applicable laws, ordinances and regulations; (g) Debtor will, at Debtor’s sole cost and expense, keep the Collateral in good order, repair, running condition and in substantially the same condition as on the date hereof, reasonable wear and tear
excepted, and Debtor will not, without the prior written consent of Secured Party, alter or remove any identifying symbol or number upon any of the Collateral; (h) Secured Party shall at all times have reasonable access to and right of inspection
of any Collateral, upon reasonable prior notice and during regular business hours) and any papers, instruments and records pertaining thereto (and the right to make extracts from and to receive from Debtor originals or true copies of such
records, papers and instruments upon request therefor) and Debtor hereby grants to Secured Party a security interest in all such records, papers and instruments to secure the payment, performance and observance of the Obligations; (i) the
Collateral is now and shall remain personal or intangible property, and Debtor will not permit any other types of Collateral to become a fixture without prior written notice to and consent of Secured Party (which consent will not be unreasonably
withheld, conditioned or delayed) and without first making all arrangements, and delivering, or causing to be delivered, to Secured Party all instruments and documents, including, without limitation, waivers and subordination agreements by any
landlords or mortgagees, requested by and reasonably satisfactory to Secured Party to preserve and protect the primary security interest granted herein against all persons; (j) Debtor will, at its sole cost and expense, perform all acts and
execute all documents reasonably requested by Secured Party from time to time to evidence, perfect, maintain or enforce Secured Party’s security interest granted herein or otherwise in furtherance of the provisions of this Security Agreement; (k)
at any time and from time to time, Debtor shall, at its sole cost and expense, execute and deliver, or cause to be executed and delivered, to Secured Party such financing statements pursuant to the Uniform Commercial Code (“UCC”),
applications for certificate of title and other papers, documents or instruments as may reasonably be requested by Secured Party in connection with this Security Agreement, and to the extent permitted by applicable law, Debtor hereby authorizes
Secured Party to execute and file at any time and from time to time one or more financing statements or copies thereof or of this Security Agreement with respect to the Collateral signed only by Secured Party, and Xxxxxx agrees to pay (or cause
to be paid) any recording tax or similar tax arising in connection with the filing of any such financing statement and further agrees to pay any additional recording or similar tax which is incurred in connection therewith; (l) Debtor assumes all
responsibility and liability arising from the Collateral; (m) in their discretion, Secured Party may, at any time and from time to time, upon the occurrence and during the continuance of a Default (as hereinafter defined), demand, sue for,
collect or receive any money or property at any time payable or receivable on account of or in exchange for, or make any compromise or settlement deemed desirable by Secured Party with respect to, any Collateral, and/or extend the time of
payment, arrange for payment in installments, or otherwise modify the terms of, or release, any of the Obligations and/or the Collateral, or any obligor, maker, endorser, acceptor, surety or guarantor of, or any Party to, any of the Obligations
or the Collateral, all without notice to or consent by Debtor and without otherwise discharging or affecting the Obligations or the Collateral; (n) in their discretion, Secured Party may, at any time and from time to time, for the account of
Debtor, pay any amount or do any act required of Debtor hereunder that Debtor fails to do or pay, and any such payment shall be deemed an advance by Secured Party to Debtor payable on demand together with interest at the highest rate then payable
on any of the Obligations; (o) Debtor will promptly pay Secured Party for any and all reasonable and documented out-of-pocket sums, costs, and expenses which Secured Party may pay or incur pursuant to the provisions of this Security Agreement or
in perfecting, defending, protecting or enforcing this Security Agreement or the security interest granted herein or in enforcing payment of the Obligations or otherwise in connection with the provisions hereof, including, but not limited to, all
search, filing and recording fees, taxes, fees and expenses for the service and filing of papers, premium on bonds and undertakings, fees of marshals, sheriffs, custodians, auctioneers, court costs, collection charges, travel expenses, and
reasonable attorneys’ fees, all of which together with interest at the highest rate then payable on any of the Obligations, shall be part of the Obligations and be payable on demand; and (p) upon the occurrence and during the continuance of a
Default, at Secured Party’s option and following written notice to Debtor, any proceeds of the Collateral received by Debtor shall not be commingled with other property of Debtor, but shall be segregated, held by Debtor in trust for Secured
Party, and promptly delivered to Secured Party in the form received, duly endorsed in blank where appropriate to effectuate the provisions hereof, the same to be held by Secured Party as additional Collateral hereunder or, at Secured Party’
option, to be applied to payment of the Obligations, whether or not due and in any order. Whenever any act is referred to herein as being taken by the Secured Party, it shall mean by the Agent appointed by the Secured Party pursuant to Section 6
hereof.
2
4. The term “Default” as used in this Security Agreement shall mean any Event of Default, as such term is defined in the Notes.
5. Upon the occurrence and during the
continuance of any Default, Secured Party may, without notice to (except as herein set forth) or demand upon Debtor, declare any Obligations immediately due and payable, and Secured Party shall have the following rights and remedies (to the extent
permitted by applicable law) in addition to all rights and remedies of a Secured Party under the UCC or of Secured Party under the Obligations, all such rights and remedies being cumulative, not exclusive and enforceable alternatively, successively
or concurrently:
(a) Secured Party may, at any time and
from time to time, with or without judicial process or the aid and assistance of others, (i) enter upon any premises in which any Collateral may be located and, without resistance or interference by Debtor, take possession of the Collateral, (ii)
dispose of any part or all of the Collateral on any such premises, (iii) require Debtor to assemble and make available to Secured Party at the expense of Debtor any part or all of the Collateral at any place and time designated by Secured Party
which is reasonably convenient to both parties, (iv) remove any part or all of the Collateral from any such premises for the purpose of effecting sale or other disposition thereof (and if any of the Collateral consists of motor vehicles, Secured
Party may use Debtor’s license plates), and (v) sell, resell, lease, assign and deliver, grant options for or otherwise dispose of any part or all of the Collateral in its then condition or following any commercially reasonable preparation or
processing, at public or private sale or proceedings or otherwise, by one or more contracts, in one or more parcels, at the same or different times, with or without having the Collateral at the place of sale or other disposition, for cash and/or
credit, and upon any terms, at such place(s) and time(s) and to such person(s) as Secured Party deems best, all without demand, notice or advertisement whatsoever, except that where an applicable statute requires reasonable notice of sale or other
disposition, Debtor hereby agrees that the sending of ten days’ notice by overnight mail, postage prepaid, to Debtor in accordance with Section 15 of this Security Agreement shall be deemed reasonable notice thereof. If any Collateral is sold by
Secured Party upon credit or for future delivery, Secured Party shall not be liable for the failure of the purchaser to pay for same, and in such event Secured Party may resell or otherwise dispose of such Collateral. Secured Party may buy any
part or all of the Collateral at any public sale and, if any part or all of the Collateral is of a type customarily sold in a recognized market or is of the type which is the subject of widely distributed standard price quotations, Secured Party
may buy such Collateral at private sale and in each case may make payment therefor by any means, whether by credit against the Obligations or otherwise. Secured Party may apply the cash proceeds actually received from any sale or other disposition
to the reasonable and documented expenses of retaking, holding, preparing for sale, selling, leasing and the like, to reasonable and documented external attorneys’ fees and all legal, travel and other expenses which may be incurred by Secured Party
in attempting to collect the Obligations, proceed against the Collateral or enforce this Security Agreement or in the prosecution or defense of any action or proceeding related to the Obligations, the Collateral or this Security Agreement; and then
to the Obligations in such order and as to principal or interest as Secured Party may desire; and Debtor shall remain liable and will pay Secured Party on demand for any deficiency remaining, together with interest thereon at the highest rate then
payable on the Obligations and the balance of any expenses unpaid, with any surplus to be paid to Debtor, subject to any duty of Secured Party imposed by law to the holder of any subordinate security interest in the Collateral known to Secured
Party.
3
(b) Secured Party may, at any time and
from time to time, as appropriate, after the occurrence and during the continuance of a Default set off and apply to the payment of the Obligations, any Collateral in or coming into the possession of Secured Party or their agents, without notice to
Debtor and in such manner as Secured Party may in their discretion determine.
6. Secured Party and Debtor may mutually designate and appoint a collateral agent (“Agent”), as attorney-in-fact of Debtor, irrevocably and with power of substitution, with authority to do anything which the Debtor is
required to do under this Security Agreement in relation to the creation, administration, protection, preservation or enforcement of the rights of the Secured Party in the Collateral, including: endorse the name of Debtor on any notes,
acceptances, checks, drafts, money orders, instruments or other evidences of Collateral that may come into Secured Party’s possession; sign the name of Debtor on any invoices, documents, assignments; execute proofs of claim and loss; execute
endorsements, assignments or other instruments of conveyance or transfer; and adjust and compromise any claims under insurance policies or otherwise; execute releases. Neither Secured Party nor the Agent shall be liable for any acts of
commission or omission done in good faith, for any error of judgment or for any mistake of fact or law. This power of attorney being coupled with an interest is irrevocable while any Obligations shall remain unpaid.
7. With respect to the enforcement of
Secured Party’s rights under this Security Agreement, absent gross negligence, fraud or willful misconduct by the Secured Party or the Agent as determined by a court of competent jurisdiction by final and non-appealable judgment, Debtor hereby
releases Secured Party and Agent from any claims, causes of action and demands at any time arising out of or with respect to this Security Agreement, the Obligations, the Collateral and its use and/or any actions taken or omitted to be taken by
Secured Party or Agent in good faith with respect thereto, and Xxxxxx xxxxxx agrees to hold Secured Party and Agent harmless from and with respect to any and all such claims, causes of action and demands.
4
8. Debtor agrees to use commercially
reasonable efforts to obtain all necessary consents in order to facilitate the inclusion of any intellectual property jointly owned by third parties as Collateral, within a hundred and twenty (120) days following the date hereof; provided that such
a hundred and twenty (120) day period shall be automatically extended in additional thirty (30) day increments so long as Debtor is using commercially reasonable efforts to obtain such consents.
9. Secured Party’s prior recourse to any
Collateral shall not constitute a condition of any demand, suit or proceeding for payment or collection of the Obligations nor shall any demand, suit or proceeding for payment or collection of the Obligations constitute a condition of any recourse
by Secured Party to the Collateral. Any suit or proceeding by Secured Party to recover any of the Obligations shall not be deemed a waiver of, or bar against, subsequent proceedings by Secured Party with respect to any other Obligations and/or
with respect to the Collateral. No act, omission or delay by Secured Party shall constitute a waiver of their rights and remedies hereunder or otherwise. No single or partial waiver by Secured Party of any covenant, warranty, representation,
Default or right or remedy which they may have shall operate as a waiver of any other covenant, warranty, representation, Default, right or remedy or of the same covenant, warranty, representation, Default, right or remedy on a future occasion.
Debtor hereby waives presentment, notice of dishonor and protest of all instruments included in or evidencing any Obligations or Collateral, and all other notices and demands whatsoever (except as expressly provided herein).
10. Debtor hereby agrees to pay, on
demand, all reasonable and documented out-of-pocket expenses incurred by Secured Party in connection with the enforcement of the Notes, this Security Agreement, and the Obligations and in connection with any amendment, including, without
limitation, the reasonable fees and disbursements of counsel to Secured Party.
11. In the event of any litigation with
respect to any matter connected with this Security Agreement, the Obligations, the Collateral or the Notes, Debtor hereby waives the right to a trial by jury and all rights of setoff. Debtor hereby waives personal service of any process in
connection with any such action or proceeding and agrees that the service thereof may be made by certified or registered mail directed to Debtor in accordance with Section 15 of this Security Agreement. In the alternative, Secured Party may in
their discretion effect service upon Debtor in any other form or manner permitted by law.
12. Upon the payment in full of the Notes
and satisfaction of all Obligations in accordance with the Notes, this Security Agreement and the security interest granted hereby in the Collateral shall terminate and all rights to the Collateral under this Agreement shall revert to Debtor. Upon
any such termination, the Debtor shall have the right to file UCC–3 financing statement releases or other documents of release reasonably required to reflect the termination of the security interest contemplated hereby.
13. Secured Party may assign their rights and obligation hereunder to any Affiliate of Secured Party, provided that such Affiliate assumes all of the liabilities or obligations of Secured Party hereunder. For purposes of
this section, “Affiliate” of any person means any other person or entity which, directly or indirectly, controls or is controlled by that person, or is under common control with that person or entity. “Control” (including, with
correlative meaning, the terms “controlled by” and “under common control with”), as used with respect to any person or entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and
policies of such person or entity, whether through the ownership of voting securities, by contract or otherwise.
5
14. All terms herein shall have the
meanings as defined in the UCC, or Securities Purchase Agreement unless the context otherwise requires. No provision hereof shall be modified, altered, waived, released, terminated or limited except by a written instrument expressly referring to
this Security Agreement and to such provision, and executed by the party to be charged. The execution and delivery of this Security Agreement has been authorized by any necessary vote or consent of Debtor. This Security Agreement and all
Obligations shall be binding upon the successors and assigns of Debtor and shall, together with the rights and remedies of Secured Party hereunder, inure to the benefit of Secured Party, their executors, administrators, successors, permitted
endorsees and permitted assigns. This Security Agreement and the Obligations shall be governed in all respects by the laws of the State of New York applicable to contracts executed and to be performed in such state. If any term of this Security
Agreement shall be held to be invalid, illegal or unenforceable, the validity of all other terms hereof shall in no way be affected thereby. Secured Party is authorized to annex hereto any schedules referred to herein.
15. All notices and other communications
under this Agreement shall be in writing and shall be deemed given when delivered personally, by e-mail, by overnight mail or delivery service or mailed by certified mail, return receipt requested, to the parties as set forth in the Notes.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS]
6
IN WITNESS WHEREOF, the undersigned have executed or caused this security agreement to be executed on the date first above set forth.
|
DEBTOR:
|
|||
|
By:
|
/s/ Xxxxxx Xxxxxxxx
|
||
|
Name: Xxxxxx Xxxxxxxx
|
|||
|
Title: Chief Executive Officer
|
|||
Secured Party:
GKCC, LLC
By: /s/ Xxxxxxxxxx Xxxxxxxxxx
Name: Xxxxxxxxxx Xxxxxxxxxx
Title: Manager
Schedule A
GKCC, LLC
Schedule B
“Collateral” shall mean all of the Debtor’s tangible and intangible property, including the
following, whether now owned or now due, or in which the Debtor has an interest, or hereafter, at any time in the future, acquired, arising or to become due, or in which the Debtor obtains an interest, and all products, proceeds, replacements,
substitutions and accessions of or to any of the following:
(i) all equipment and all warranties,
express or implied, related thereto,
(ii) all accounts and accounts
receivable,
(iii) all inventory,
(iv) all general intangibles (including
payment intangibles, software, trademarks, patents, copyrights or other intellectual property rights of the Debtor),
(v) all goods,
(vi) all investment property,
(vii) all cash and cash equivalents,
(viii) all deposit accounts and securities
accounts,
(ix) all instruments, chattel paper,
letters of credit and letter-of-credit rights (whether or not the letter of credit is evidenced in writing),
(x) all commercial tort claims,
(xi) all fixtures,
(xii) all documents,
(xiii) all money and any rights to the
payment of money,
(xiv) all books, records and information
relating to the Collateral,
(xv) all insurance proceeds, refunds and
premium rebates, including proceeds of fire and credit insurance, whether any of such proceeds, refunds and premium rebates arise out of any of the foregoing or otherwise, and
(xvi) all proceeds and products of each of
the foregoing, all supporting obligations related thereto, and all accessions to, substitutions and replacements for any of the foregoing.
