SECURITY AGREEMENT
EXHIBIT
10.2
This
Security Agreement (this “Agreement”) is made and entered into as of __________,
2009, by and between Advaxis, Inc., a Delaware corporation (the “Grantor”), and
the Investors listed on Schedule A hereto (collectively, “Secured
Parties”).
RECITALS
A. Pursuant
to that certain Note Purchase Agreement dated as of __________, 2009 by and
between the Grantor and the Secured Parties (the “Note Purchase Agreement”),
Secured Parties have agreed to make certain advances of money to Grantor in the
amounts and manner set forth in the Note Purchase Agreement (collectively, the
“Loans”) and as represented by one or more Secured Convertible Promissory Notes
of even date (the “Bridge Notes”) (the Note Purchase Agreement, Bridge Notes and
this Agreement are sometimes collectively referred to herein as the “Transaction
Documents”);
B. Grantor
wishes to secure performance and payment of all obligations under the Note (the
“Obligations”) to the Secured Parties pursuant to the Note, with all of their
tangible and intangible assets, including without limitation, goodwill,
intellectual property and Grantor’s contractual rights with third parties, all
as further described on Exhibit A attached hereto. All terms used
without definition in this Agreement shall have the meaning assigned to them in
the Note Purchase Agreement. All terms used without definition in
this Agreement or in the Note Purchase Agreement shall have the meaning assigned
to them in Article 1 or Article 9 of the Uniform Commercial Code
(“UCC”).
C. Secured
Parties are willing to make the Loans to Grantor, but only upon the condition,
among others, that the Grantor shall have executed and delivered to Secured
Parties this Agreement.
NOW,
THEREFORE, Grantor and the Secured Parties agree as follows:
1. Grant of Security
Interest. To secure all of the Obligations, Grantor grants to
Secured Parties a continuing lien and security interest in, and hereby assigns
to the Secured Parties as collateral security, the property described in Exhibit
A (the “Collateral”).
2. Grantor’s Representations
and Warranties. Grantor represents, warrants, and covenants as
follows:
(a) Authorization. Grantor
has authority and has obtained all approvals and consents necessary to enter
into this Agreement (including the consent of the Existing Secured Parties), and
Grantor’s execution, delivery and performance of this Agreement will not violate
or conflict with the terms of Grantor’s Certificate of Incorporation or Bylaws
or any statute, regulation, ordinance, rule of law, agreement, contract,
mortgage, indenture, xxxx, xxxx, note, or other instrument or writing binding
upon Grantor or to which Grantor is subject.
(b) Title. The
Collateral is owned by the Grantor and is free of all liens, encumbrances and
other security interests, other than the lien of this Agreement, and liens
attributable to any other agreement entered into by the Grantor and Secured
Parties in connection with the transactions contemplated by the Note Purchase
Agreement (collectively, “Permitted Liens”).
(c) Further
Representations. Grantor further represents, warrants, and
covenants that (i) Grantor is not in default under any agreement under which
Grantor owes any money, or any agreement, the violation or termination of which
could reasonably be expected to have a material adverse effect on the Grantor;
(ii) the information, if any, provided by the Grantor to Secured Parties
pursuant to a request for such information from any Secured Party on or prior to
the date of this Agreement is true and correct in all material respects; (iii)
all financial statements and other information provided to any Secured Party, if
any, fairly present Grantor’s financial condition as at the respective dates
thereof, and there has not been a material adverse change in the financial
condition of the Grantor since the date of the most recent of the financial
statements submitted to any Secured Party; (iv) Grantor is in compliance with
all laws and orders applicable to it where the failure to so comply could
reasonably be expected to have a material adverse effect on the Grantor; (v)
Grantor is not party to any litigation and is not, to its knowledge the subject
of any government investigation, and the Grantor has no knowledge of any pending
litigation or investigation or the existence of circumstances that reasonably
could be expected to give rise to such litigation or investigation; (vi)
Grantor’s principal place of business is located at the address specified in
Section 9; and (vii) the representations and other statements made by the
Grantor to Secured Parties, do not, taken as a whole, contain any untrue
statement of a material fact or omit to state a material fact necessary to make
any statements made to Secured Parties not misleading.
3. Covenants.
(a) Encumbrances. The
Grantor shall not grant a security interest in any of the Collateral or execute
any financing statements covering any of the Collateral in favor of any person
or entity other than Secured Parties.
(b) Use of
Collateral. The Collateral will not be used for any unlawful
purpose or in any way that will void any insurance required to be carried in
connection therewith. Grantor will keep the Collateral free and clear
of liens (other than Permitted Liens) and, as appropriate and applicable, will
keep it in good condition and repair, and will clean, shelter, and otherwise
care for the Collateral in all such ways as are considered good practice by
owners of like property.
(c) Indemnification. Grantor
shall indemnify Secured Parties against all losses, claims, demands and
liabilities of any kind caused by the Collateral.
(d) Perfection of Security
Interest. Grantor shall execute and deliver such documents as
any Secured Party reasonably deems necessary to create, perfect and continue the
security interest in the Collateral contemplated hereby.
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(e) Insurance of
Collateral. Grantor, at its expense, shall keep the Collateral
insured against loss or damage by fire, theft, explosion, sprinklers, and all
other hazards and risks, and in such amounts, as are ordinarily insured against
by other owners in similar businesses conducted in the locations where Grantor’s
business is conducted on the date hereof. Grantor shall also maintain
insurance relating to Grantor’s ownership and use of the Collateral in amounts
and of a type that are customary to businesses similar to Grantor.
(f) Inventory. As
to Collateral which is Inventory, Grantor agrees (a) to the extent held in any
warehouse or other third party storage facility, to deliver immediately to
Secured Parties or Secured Parties’ nominee all warehouse receipts or other
documents otherwise entitling Grantor to possession of the Collateral, (b) to
execute and deliver to Secured Parties such financing statements as any Secured
Party may request with respect to the Inventory, (c) to take such other steps as
Secured Parties may from time to time reasonably request to perfect Secured
Parties’ security interest in the Inventory under applicable law, including,
with respect to any portion of the Inventory held by, or in the possession or
under the control of any person or entity other than Grantor, to obtain the
agreement of such person or entity that Secured Parties have a first priority
security interest in the Inventory and that Secured Parties may take or
otherwise exercise control over such Inventory, free and clear of any claims of
such person or entity.
(g) Binding
Agreement. Anything herein to the contrary notwithstanding,
(i) Grantor shall remain liable under the contracts and agreements included in
the Collateral to the extent set forth therein to perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed; (ii) the exercise by Secured Parties of any of the rights granted
hereunder shall not release Grantor from any of its duties or obligations under
the contracts and agreements included in the Collateral; and (iii) Secured
Parties shall not have any obligation or liability under the contracts and
agreements included in the Collateral by reason of this Agreement, nor shall
Secured Parties be obligated to perform any of the obligations or duties of the
Grantor thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
(h) Instruments. Grantor
will deliver and pledge to Secured Parties all certificates or instruments that
represent or evidence the Collateral duly endorsed and accompanied by duly
executed instruments of transfer or assignment, all in form and substance
satisfactory to Secured Parties.
(i) Records. Grantor
shall prepare and keep, in accordance with generally accepted accounting
principles consistently applied, complete and accurate records regarding the
Collateral and, if and when requested by a Secured Party, shall prepare and
deliver a complete and accurate schedule of all the Collateral in such detail as
a Secured Party may reasonably require.
(j) Inspection of Grantor’s
Books. Grantor shall permit Secured Parties or its designee at
reasonable times and from time to time to inspect Grantor’s books, records and
properties and to audit and to make copies of extracts from such books and
records.
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(k) Fees and
Costs. Grantor shall pay all expenses, including reasonable
attorneys’ fees, incurred by Secured Parties in the preservation, realization,
enforcement or exercise of any Secured Party’s rights under this
Agreement.
(l) Further
Assurances. At any time and from time to time, upon the
written request of a Secured Party, and at the sole expense of the Grantor,
Grantor shall promptly and duly execute and deliver any and all such further
instruments and documents and take such further action as a Secured Party may
reasonably deem desirable to obtain the full benefits of this Agreement and of
the rights and powers herein granted, including, without limitation, (i) to
secure all consents and approvals necessary or appropriate for the grant of a
security interest to Secured Parties in any Collateral held by Grantor or in
which Grantor have any rights not heretofore assigned, (ii) filing any financing
or continuation statements under the UCC with respect to the security interests
granted hereby, (iii) transferring Collateral to Secured Parties’ possession (if
a security interest in such Collateral can be perfected by possession), (iv)
placing the interest of Secured Parties as lienholder on the certificate of
title (or other evidence of ownership) of any vehicle owned by the Grantor or in
or with respect to which the Grantor holds a beneficial interest, (v) using its
best efforts to obtain waivers of liens from landlords and mortgagees, and (vi)
causing each wholly-owned subsidiary which becomes a subsidiary of Grantor after
the effective date hereof to (A) join in the Guaranty as an additional guarantor
and (B) join in this Agreement as a “Subsidiary” and “Grantor” within the
meaning hereof. Grantor also hereby authorizes Secured Parties to
file any such financing or continuation statement without the signature of
Grantor. If any amount payable under or in connection with any of the
Collateral is or shall become evidenced by any Instrument, such Instrument,
other than checks and notes received in the ordinary course of business, shall
be duly endorsed in a manner satisfactory to Secured Parties and delivered to
Secured Parties promptly upon Grantor’s receipt thereof.
4. Events of
Default. The occurrence of (i) any material breach or default
of any material covenant or other material term or condition under the Note
Purchase Agreement (or any promissory note or other agreement or instrument
delivered in connection therewith, the Transaction Documents) (after giving
affect to any applicable notice and cure period thereunder) or (ii) the material
breach of any material representation under this Agreement (after notice of any
such breach from any Secured Party and expiration of a fifteen (15) day cure
period without cure of such breach to Secured Parties’ satisfaction), or the
failure to perform any material obligation in any material respect under Section
3 of this Agreement, shall constitute an “Event of Default” under this
Agreement.
5. Remedies on
Default.
(a) Upon
the occurrence and upon the continuance of any Event of Default, Secured Parties
may declare all amounts outstanding under the Note Purchase Agreement to be
immediately due and payable, and thereupon all such amounts shall be and become
immediately due and payable to the Secured Parties. Secured Parties
shall have all rights, privileges, powers and remedies provided by
law.
i. Secured
Parties may gather, take possession of, and sell or otherwise dispose of, the
Collateral in accordance with applicable law; and
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ii. Secured
Parties may use, operate, consume and sell the Collateral in its possession as
appropriate for the purpose of performing Grantor’s obligations with respect
thereto to the extent necessary to satisfy the obligations of
Grantor.
(b) All
payments received and amounts realized by Secured Parties shall be promptly
applied and distributed by the Secured Parties in the following order of
priority:
i. first,
to the payment of all costs and expenses, including reasonable legal expenses
and attorneys fees, incurred or made hereunder by Secured Parties, including any
such costs and expenses of foreclosure or suit, if any, and of any sale or the
exercise of any other remedy under this Section 5, and of all taxes, assessments
or liens superior to the lien granted under this Agreement;
ii. second,
to payment to the Secured Parties (up to the amount then owing under the Note
Purchase Agreement); and
iii. third,
to the Grantor (to the extent of any surplus).
6. Power of
Attorney. Following an Event of Default, Grantor hereby
appoints Secured Parties, its attorney-in-fact to prepare, sign and file or
record, for Grantor in Grantor’s name, any financing statements, applications
for registration and like papers and to take any other action deemed by Secured
Parties as necessary or desirable in order to perfect the security interest of
the Secured Parties hereunder, to dispose of any Collateral, and to perform any
obligations of the Grantor hereunder, at Grantor’s expense, but without
obligation to do so. Any proceeds received from the foregoing actions
of Secured Parties will be distributed in accordance with Section 5(d) of this
Agreement.
7. Remedies
Cumulative. The Secured Parties’ rights and remedies under
this Agreement and all other agreements shall be cumulative and are not
exclusive of any other remedies not inconsistent herewith as provided under the
UCC, by law, or in equity. No exercise by any Secured Party of one
right or remedy shall be deemed an election, and no waiver by any Secured Party
of any Event of Default shall be deemed a continuing waiver. No delay
by any Secured Party shall constitute a waiver, election, or acquiescence by
it. No waiver by any Secured Party shall be effective unless made in
a written document signed on behalf of such Secured Party and then shall be
effective only in the specific instance and for the specific purpose for which
it was given.
8. Grantor’s
Waivers. Secured Parties may, at their election, exercise or
decline or fail to exercise any right or remedy it may have against the Grantor
or any security held by Secured Parties, including without limitation the right
to foreclose upon any such security by judicial or nonjudicial sale, without
affecting or impairing in any way the liability of the Grantor
hereunder. Grantor waives any setoff, defense or counterclaim that
the Grantor may have against any Secured Party. Grantor waives any
defense arising out of the absence, impairment or loss of any right of
reimbursement or subrogation or any other rights against the
Grantor. Grantor waives all rights to participate in any security now
or hereafter held by Secured Parties. Grantor waives all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, and notices of acceptance of this
Agreement and of the existence, creation, or incurring of new or additional
indebtedness.
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9. Notices. Unless
otherwise provided in this Agreement, all notices or demands by any party
relating to this Agreement or any other agreement entered into in connection
herewith shall be in writing and (except for financial statements and other
informational documents which may be sent by first-class mail, postage prepaid)
shall be personally delivered or sent by a recognized overnight delivery
service, certified mail, postage prepaid, return receipt requested, or by
telefacsimile to the Grantor or to Secured Parties, as the case may be, at its
addresses set forth in the Note Purchase Agreement. The parties
hereto may change the address at which they are to receive notices hereunder, by
notice in writing in the foregoing manner given to the other.
10. Choice of Law and Venue;
Jury Trial Waiver.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of Delaware, without regard to principles of conflicts of
law. Grantor and Secured Parties each acknowledge that a substantial
portion of negotiations and anticipated performance and execution of this
Agreement occurred or shall occur in the City of New York, Borough of Manhattan,
and that, therefore, without limiting the jurisdiction or venue of any other
federal or state courts, each of the parties irrevocably and unconditionally (a)
agrees that any suit, action or legal proceeding arising out of or relating to
this Agreement may be brought in the courts of record of the City of New York,
Borough of Manhattan or the court of the United States, Southern District of New
York; (b) consents to the jurisdiction of each such court in any suit, action or
proceeding; (c) waives any objection which it may have to the laying of the
venue of any such suit, action or proceeding in any of such courts; and (d)
agrees that service of any court paper may be effected on such party by mail, as
provided in this Agreement, or in such other manner as may be provided under
applicable laws or court rules in said state. GRANTOR AND SECURED
PARTIES EACH HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE
LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE FOREGOING
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS
AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
11. General
Provisions.
(a) Successors and
Assigns. This Agreement shall bind and inure to the benefit of
the respective successors and permitted assigns of each of the parties;
provided, however, that neither this Agreement nor any rights hereunder may be
assigned by the Grantor without Secured Parties’ prior written consent, which
consent may be granted or withheld in Secured Parties’ sole
discretion. Each Secured Party shall have the right without the
consent of or notice to the Grantor to sell, transfer, negotiate, or grant
participation in all or any part of, or any interest in, such Secured Party’s
obligations, rights and benefits hereunder.
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(b) Time of
Essence. Time is of the essence for the performance of all
obligations set forth in this Agreement.
(c) Severability of
Provisions. Each provision of this Agreement shall be
severable from every other provision of this Agreement for the purpose of
determining the legal enforceability of any specific provision.
(d) Amendments in Writing,
Integration. This Agreement cannot be amended or terminated
orally. All prior agreements, understandings, representations,
warranties, and negotiations between the parties hereto with respect to the
subject matter of this Agreement, if any, are merged into this
Agreement.
(e) Counterparts. This
Agreement may be executed in any number of counterparts and by different parties
on separate counterparts, each of which, when executed and delivered, shall be
deemed to be an original, and all of which, when taken together, shall
constitute but one and the same Agreement.
(f) Survival. All
covenants, representations and warranties made in this Agreement shall continue
in full force and effect so long as any Obligations remain outstanding or any
Secured Party has any obligation to make Credit Extensions to the
Grantor. The obligations of the Grantor to indemnify the Secured
Parties with respect to the expenses, damages, losses, costs and liabilities
described in Section (b) shall survive until all applicable statute of
limitations periods with respect to actions that may be brought against any
Secured Party have run.
12. Collateral
Agent.
The
Secured Parties executing this Agreement acknowledge and understand that a
collateral agent may be appointed under the this Agreement and the other
Transaction Documents (the "Collateral Agent"), in which case the Collateral
Agent shall be designated to take any and all actions on behalf of the Secured
Parties under the provisions of this Agreement and the other Transaction
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Collateral Agent by the terms of this Agreement and the other
Transaction Documents, together with such other powers as are reasonably
incidental thereto.
[SIGNATURES
ON THE FOLLOWING PAGE]
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IN
WITNESS WHEREOF, the parties have executed this Agreement on the date set forth
above.
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GRANTOR:
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SECURED
PARTIES:
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[_________]
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By:
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[_________]
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Name:
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Title:
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EXHIBIT
A
COLLATERAL
DESCRIPTION
ATTACHMENT
TO THIS SECURITY AGREEMENT
All
personal property of Grantor whether presently existing or hereafter created or
acquired, and wherever located, including, but not limited to:
(a) all
accounts (including health-care-insurance receivables), chattel paper (including
tangible and electronic chattel paper), deposit accounts, documents (including
negotiable documents), equipment (including all accessions and additions
thereto), general intangibles (including payment intangibles and software),
goods (including fixtures), instruments (including promissory notes), inventory
(including all goods held for sale or lease or to be furnished under a contract
of service, and including returns and repossessions), investment property
(including securities and securities entitlements), letter of credit rights,
money, and all of Grantor’s books and records with respect to any of the
foregoing, and the computers and equipment containing said books and
records;
(b) all
common law and statutory copyrights and copyright registrations, applications
for registration, now existing or hereafter arising, in the United States of
America or in any foreign jurisdiction, obtained or to be obtained on or in
connection with any of the forgoing, or any parts thereof or any underlying or
component elements of any of the forgoing, together with the right to copyright
and all rights to renew or extend such copyrights and the right (but not the
obligation) of Secured Parties to xxx in their own name and/or in the name of
Grantor for past, present and future infringements of copyright;
(c) all
trademarks, service marks, trade names and service names and the goodwill
associated therewith, together with the right to trademark and all rights to
renew or extend such trademarks and the right (but not the obligation) of
Secured Parties to xxx in its own name and/or in the name of Grantor for past,
present and future infringements of trademark;
(d) all
(i) patents and patent applications filed in the United States Patent and
Trademark Office or any similar office of any foreign jurisdiction, and
interests under patent license agreements, including, without limitation, the
inventions and improvements described and claimed therein, (ii) licenses
pertaining to any patent whether Grantor is licensor or licensee, (iii) income,
royalties, damages, payments, accounts and accounts receivable now or hereafter
due and/or payable under and with respect thereto, including, without
limitation, damages and payments for past, present or future infringements
thereof, (iv) right (but not the obligation) to xxx in the name of Grantor
and/or in the name of Secured Parties for past, present and future infringements
thereof, (v) rights corresponding thereto throughout the world in all
jurisdictions in which such patents have been issued or applied for, and (vi)
reissues, divisions, continuations, renewals, extensions and
continuations-in-part with respect to any of the foregoing; and
(e) any
and all cash proceeds and/or noncash proceeds of any of the foregoing,
including, without limitation, insurance proceeds, and all supporting
obligations and the security therefor or for any right to
payment. All terms above have the meanings given to them in the
Florida Uniform Commercial Code, as amended or supplemented from time to
time.
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Notwithstanding
the foregoing, the term “Collateral” shall not include any Equipment or rights
of the Grantor as a lessee or licensee to the extent the granting of a security
interest therein would be contrary to applicable law.
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Schedule
A Investors/Secured Parties
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Name
of Purchaser/Address
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Principal
Amount of Note
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[____________________]
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$[__________]
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