Exhibit 10.11.3
GUARANTY AND SECURITY AGREEMENT
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AGREEMENT, dated as of January 29, 2004, by OPUS DIAGNOSTICS, INC., a
Delaware corporation (the "Guarantor"), in favor of XXXXXX XXXXXX (the "Agent"),
acting in his capacity as agent for himself and for the other holders (the
"Holders") of the Secured Promissory Notes, dated January 29, 2004 (the
"Notes"), issued by CAPRIUS, INC., a Delaware corporation ("Caprius"), to the
Holders.
W I T N E S S E T H
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WHEREAS, Caprius has requested the Holders to loan up to $500,000 to
Caprius for which it would issue the Notes to the Holders;
WHEREAS, the Guarantor is a wholly-owned subsidiary of Caprius;
WHEREAS, to induce the Holders to make the loans to Caprius, the Guarantor
offered to guaranty the repayment of the Notes on a non-recourse basis secured
by the grant of the security interest provided for herein, and the Holders are
willing to accept such security interest;
NOW THEREFORE, in consideration of the mutual conditions and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS
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1.1 Defined Terms. In addition to the other terms defined in this
Agreement, whenever the following capitalized terms are used they
shall be defined as follows:
"Business Day" shall mean any weekday excluding any legal holiday
observed pursuant to United States federal or New Jersey state law or
regulation.
"Collateral" shall have the meaning ascribed to such term in Section
3.
"Event of Default" shall have the meaning ascribed to such term under
the Notes.
"Financing Agreements" shall mean, collectively, this Agreement, the
Notes and all other agreements, documents and instruments now or at any time
hereafter executed and/or delivered by the Guarantor, Caprius, the Holders or
the Agent in connection with the Financing Agreements, as the same now exist or
may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
"Liens" shall mean mortgages, liens, pledges, charges, security
interest, encumbrances or other third party interests of any nature whatsoever.
"Net Sales" shall have the meaning ascribed to such term under the
Royalty Agreement.
"NJUCC" shall mean the Uniform Commercial Code as in effect in the
State of New Jersey from time to time.
"Obligations" shall mean any and all obligations of every kind, nature
and description owing by Caprius to the Holders, including principal, interest,
costs and expenses, however evidenced, as arising under the Notes or this
Agreement.
"Person" shall mean an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization, or a governmental entity (or
department, agency or political subdivision thereof).
"Products" shall have the meaning ascribed to such term under the
Royalty Agreement.
"Royalties" shall have the meaning ascribed to such term in Section
3.1.
"Royalty Agreement" shall have the meaning ascribed to such term in
Section 3.1.
"Successor Agent" shall have the meaning ascribed to such term in
Section 8.4.
"Year" shall have the meaning ascribed to such term under the Royalty
Agreement.
1.2 Other Definitional Provisions, Construction. All terms used
herein and defined in the NJUCC shall have the same definitions as specified
therein. Unless otherwise specified, "hereunder," "herein," hereto,"
"this Agreement" words of similar import refer to this entire document;
"including" is used by way of illustration and not by way of limitation,
unless the context clearly indicates the contrary; the singular includes the
plural and conversely.
2. GUARANTY
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2.1 The Guaranty. Subject to the terms and conditions herein, the
Guarantor hereby irrevocably and unconditionally guarantees to the Holders the
prompt, punctual, and full payment when due (whether at stated maturity, by
acceleration or otherwise) of all obligation from time to time owing by Caprius
to the Holders arising from, under or with respect to the Notes (collectively,
the "Obligations"), and the prompt and complete performance by Caprius of any
and all of the terms, conditions, covenants and agreements agreed to be
performed by Caprius under the Notes or in any agreement, instrument, note,
document or certificate evidencing or relating to the Obligations.
2.2 Irrevocable. The obligations of Guarantor hereunder are
irrevocable, absolute, and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of the Notes or any term or
provision thereof or of any document relating to the Obligations or any other
circumstance with might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor.
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2.3 Limited Recourse. Notwithstanding the foregoing, the Holders
understand that upon an Event of Death by Caprius with respect to the Notes, the
Collateral herein shall represent the Holders only recourse against the
Guarantor, in respect of this Guaranty, subject to the terms and conditions set
forth below.
3. GRANT OF SECURITY INTEREST
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As collateral security for the punctual payment and performance of the
Obligations by Caprius, the Guarantor hereby grants to the Holders a continuing
security interest in, and shall assign to the Holders as security, the following
property and interests in property, whether presently owned or hereafter
acquired or existing, and wherever located (collectively, the "Collateral"):
Royalties due to the Guarantor pursuant to a Royalty Agreement, dated October 9,
2002 (the "Royalty Agreement), for ten (10) years from this date, by and between
Seradyn, Inc., a Delaware corporation ("Seradyn"), and the Guarantor (the
"Royalties") as follows:
(a) ten percent (10%) of Net Sales during each Year of the Products
used in conjunction with Zonisamide (Zonegram) pursuant to the
Supply Agreement dated July 4, 2002 between Opus and Dainippon
Pharmaceutical Co., Ltd.
(b) fifteen percent (15%) of Net Sales during the first five (5)
Years following receipt of the earlier of either (i) Food and
Drug Administration Pre- Market Approval or (ii) regulatory
approval in a non-U.S. market of the Products to be used in
conjunction with RAD (Certican), and ten percent (10%) of the Net
Sales of such Products for the balance of the ten (10) Year
period, each pursuant to the Antibody License Agreement, dated
October 15, 2000, between Opus and Novartis Pharma AG; and all
proceeds from such Royalties, and
(c) ten percent (10% of Net Sales during each Year of the Products
used in connection with Lamotrigine (Lamictal) pursuant to the
Material Transfer Agreement dated April 7, 2001 between Seller
and SmithKline Xxxxxxx Corporation d/b/a/ Glaxo SmithKline.
4. COLLATERAL COVENANTS
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4.1 Verification. The Agent shall have the right at any time or times
to verify the validity, amount or any other matter relating to any Royalties due
or other Collateral or the Royalty Agreement.
4.2 Notification. The Agent may, at any time or times that an Event of
Default exists or has occurred and is continuing on (i) notify Seradyn or any
other party under the Royalty Agreement that the Royalties have been assigned to
the Agent and that the Holders have a security interest therein and the Agent,
on behalf of the Holders, may direct any or all parties under the Royalty
Agreement to make payment of Royalties directly to the Agent, (ii) demand,
collect or enforce payment of any Royalties or such other obligations, but
without any duty to do so, and the Agent shall not be liable for its failure to
collect or enforce the payment thereof nor for the negligence of its agents or
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attorneys with respect thereto and (iii) take whatever other action the Holders
may deem necessary or desirable for the protection of the Holders' interests.
4.3 Power of Attorney. If at any time an Event of Default exists or
has occurred and is then continuing, at the request of the Agent, the Guarantor
shall irrevocably designate and appoint the Agent as Caprius' true and lawful
attorney-in-fact, and authorize the Agent, in Caprius' or the Agent's name, to
do all acts and things which are necessary, in the Agent's determination, to
fulfill Caprius' obligations under this Agreement and the other Financing
Agreements. Caprius hereby releases the Agent from any liabilities arising from
any act or acts under this power of attorney and in furtherance thereof, whether
of omission or commission, except as a result of the Agent's own negligence or
misconduct as determined pursuant to a final non-appealable order of a court of
competent jurisdiction.
5. REPRESENTATIONS AND WARRANTIES
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The Guarantor hereby represents and warrants to the Holders the
following (which shall survive the execution and delivery of this Agreement):
5.1 Authority. The Guarantor has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby, and its execution, delivery and performance of this
Agreement have been duly and validly authorized by all necessary corporate
action.
5.2 Restrictions. There are no restrictions upon the transfer of any
of the Collateral, and the Guarantor has the unqualified right to transfer the
Collateral without obtaining the consent of any Person, except for the consent
of Seradyn to the assignment of the Royalty Agreement from the Guarantor to a
person designated by the Agent.
5.3 Ownership. The Royalty Agreement is a valid and binding agreement,
and is in full force and effect, and the Guarantor does not have any knowledge
of any default thereunder. The Guarantor is owner of the entire right, title and
interest in and to the Collateral free and clear of any Lien, charge, covenant
or any other encumbrance, except for the security interest created by this
Agreement, and there are no adverse claims with respect to any of the
Collateral.
5.4 Claims. The Guarantor will defend the Agent's right to the
Collateral against the claims of all Persons.
5.5 Priority. The delivery of the Collateral pursuant to this
Agreement and the filing of financing statements thereto shall create a valid
and perfected first priority security interest in the Collateral, securing the
payment of the Obligations.
5.6 Third Party. No authorization, approval or other action by, and no
notice to or filing with any governmental authority is required either for the
delivery by the Guarantor of the Collateral pursuant to this Agreement or for
the execution, delivery or performance of this Agreement by the Guarantor except
for (i) filings of Forms UCC, (ii) any required consent of Seradyn in the event
the Guarantor desires to assign the Royalty Agreement, or (iii) the remedies in
respect of the Collateral pursuant to this Agreement.
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6. AFFIRMATIVE AND NEGATIVE COVENANTS
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6.1 Further Assurances. The Guarantor will, at its expense and from
time to time, promptly execute and deliver all further instruments, documents
and agreements, and take all further action that may be necessary or desirable,
or that the Holders or the Agent may request, in order to (i) continue, perfect
and protect the security interest and Lien granted or purported to be granted
hereby or (ii) enable the Agent or the Holders to exercise and enforce their
respective rights and remedies hereunder with respect to the Collateral. Without
prejudice to the generality of the foregoing, each such instrument or document
shall be in such form as the Holders or Agent shall stipulate and may contain
provisions such as are herein contained or provisions to the like effect or such
other provisions of whatsoever kind as the Holders or the Agent shall reasonably
consider requisite for the improvement (on and subject to the terms here),
perfection or enforcement of the security constituted by, or pursuant to, this
Agreement.
6.2 Financing Statements. The Guarantor will execute and file such
financing or continuation statements or amendments thereto as the Agent may
reasonably request in order to perfect and preserve the security interests
granted herein. Upon the execution of this Agreement, Caprius shall deliver to
the Agent executed Forms UCC-1 in form for filing in the State of New Jersey.
7. REMEDIES UPON AN EVENT OF DEFAULT
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7.1 Process following Event of Default. At any time an Event of
Default exists or has occurred and is continuing, the Agent shall have all
rights and remedies provided in this Agreement, the Notes, any other Financing
Agreements, the NJUCC and other applicable law, all of which rights and remedies
may be exercised without notice to or consent by Caprius or the Guarantor,
except as such notice or consent is expressly provided for hereunder or required
by applicable law. All rights, remedies and powers granted to the Agent
hereunder, under any of the other Financing Agreements, the NJUCC or other
applicable law, are cumulative, not exclusive and enforceable, in the Agent's
discretion, alternatively, successively, or concurrently on any one or more
occasions, and shall include, without limitation, the right to apply to a court
of equity for an injunction to restrain a breach or threatened breach by the
Guarantor of this Agreement or any of the other Financing Agreements to which it
is a party.
7.2 Actions. Without limiting the foregoing, at any time an Event of
Default exists or has occurred and is continuing, the Agent may, in his
discretion and without limitation, (i) require the Guarantor or Caprius, at
Caprius' expense, to make available to the Agent any part or all of the
Collateral, (ii) collect, foreclose, receive, appropriate, setoff and realize
upon any and all Collateral, or (iii) sell, transfer, assign, deliver or
otherwise dispose of any and all Collateral (including, without limitation,
entering into contracts with respect thereto), subject to the Royalty Agreement.
7.3 Application of Proceeds. The Agent may apply the cash proceeds of
Collateral actually received by the Agent from any collection, sale, foreclosure
or other disposition of the Collateral to payment of the Obligations, in whole
or in part and in such order as the Agent may elect.
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8. AGENT'S DUTIES
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8.1 Duties. The powers conferred on the Agent hereunder are solely to
protect the interest in the Collateral as set forth in this Agreement, and shall
not impose any duty upon Agent to collect, sell or otherwise realize on the
Collateral or to exercise any powers not specifically expressed herein.
Notwithstanding anything to the contrary herein, the duties and obligations of
the Agent hereunder shall extend only to the delivery of the Collateral pursuant
to this Agreement and such duties and obligations will terminate upon such
delivery.
8.2 Care. The Agent shall be deemed to have exercised reasonable care
in the custody and preservation of the Collateral in his possession if the
Collateral is accorded treatment substantially equal to that which the Agent
accords his own property, it being understood that the Agent shall not have
responsibility for taking any necessary steps to preserve rights against any
parties with respect to any Collateral. The Agent shall not be liable for any
error of judgment, or for any act done or step taken or omitted by him in good
faith or for any mistake in fact or law, or for anything which he may do or
refrain from doing in connection herewith, except his own willful misconduct or
gross negligence. In the event of ambiguity in the provisions governing the
Notes or uncertainty on the part of the Agent as to how to proceed, such that
the Agent, in his sole and absolute judgment, deems it necessary for his
protection so to do, the Agent may refrain from taking any action other than to
retain custody of the Collateral deposited hereunder until he shall have
received joint written instructions signed by the Guarantor and Holders
constituting at least a majority of the aggregate principal amount then
outstanding under the Notes in accordance with the provisions of this Agreement.
8.3 Acts of Others. The Agent shall not be responsible for any failure
or inability of the parties to this Agreement, or of anyone else, to deliver the
Collateral to the Agent or otherwise to honor any of the provisions of this
Agreement. The Agent shall be fully protected in acting on and relying upon any
written notice, direction, request, waiver, consent, receipt or other paper or
document which the Agent in good faith believes to be genuine and to have been
signed or presented by the proper party or parties from time to time.
8.4 Resignation. The Agent may resign at any time by giving ten (10)
days' written notice thereof to the Guarantor and the Holders. Within fifteen
(15) days after receiving such notice, the Guarantor and the Holders shall
appoint a successor agent (the "Successor Agent"). After appointment of the
Successor Agent, the Agent shall have no further duties or responsibilities in
connection herewith. If after thirty (30) days from the date of delivery of its
written notice of intent to resign, the Agent has not received a written
designation of a Successor Agent, the Agent's sole responsibility shall be in
his sole discretion either to remain as the Agent or to apply to a court of
competent jurisdiction for appointment of a Successor Agent and after such
appointment to have no further duties or responsibilities in connection
herewith.
9. FEES, INDEMNIFICATION
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Caprius shall pay any and all of the Agent's fees and expenses for the
performance of this Agreement, plus all reasonable and proper expenses,
disbursements and advances incurred or made by Agent in connection with the
performance of its duties hereunder. Caprius and the Holders each agrees to
indemnify and hold the Agent harmless from and against any and all expenses
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(including counsel fees), liabilities, claims, damages, actions, suits or other
charges incurred by or assessed against the Agent for anything done or omitted
by it in the performance of its duties hereunder, except as a result of his own
gross negligence or willful misconduct.
10. NOTICE
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Except as otherwise specifically set forth herein, all notices,
instructions, requests, demands or other communications hereunder shall be
deemed to have been duly and effectively given only if delivered in writing by
hand, by express delivery service or by registered mail, return receipt
requested, or by recognized overnight courier, addressed as follows:
10.1 If to the Agent or for the Holders:
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Xxxxxxx Xxxxxx
c/o Caprius, Inc.
Xxx Xxxxxx Xxxxx
Xxxx Xxx, Xxx Xxxxxx 00000
If to the Guarantor or Caprius:
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Opus Diagnostics, Inc.
Xxx Xxxxxx Xxxxx
Xxxx Xxx, Xxx Xxxxxx 00000
Attn: President
Copy to:
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Xxxxx Xxxx, Esq.
Xxxxxx Xxxx & Priest LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Any party may, by written notice to the other parties, substitute such other
address as it deems advisable. No notice, instruction, request, demand or other
communication hereunder shall be deemed to have been received prior to actual
receipt by recipient.
11. GENERAL
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11.1 Effectiveness and Termination. This Agreement creates a continuing
security interest and Lien on the Collateral and will remain in full force and
effect until the full final payment by Caprius in satisfaction of all the
Obligations. Upon termination the Holders' rights, titles and interest in and to
the Collateral shall be automatically terminated and released.
11.2 Entire Agreement; Amendments, Counterparts. This Agreement, the Notes
and all other Financing Agreements set forth the entire agreement of the parties
with respect to subject matter of this Agreement and supersedes all previous
understandings, written or oral, in respect thereof. In the event of a conflict
between the terms of this Agreement and those of any other agreement, the terms
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herein shall govern. The terms of this Agreement may be amended, waived or
modified only by an instrument in writing duly executed by all the parties
hereto. Two or more duplicate originals of this Agreement may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument.
11.3 Assignment. The Guarantor may not assign, transfer or otherwise
dispose of any of its rights or obligations hereunder, by operation of law or
otherwise, and any such assignment, transfer or other disposition without the
written consent of the Holders and the Agent shall be void.
11.4 Binding. This Agreement is binding upon and shall inure to the benefit
of the parties hereto and their respective heirs, assigns, administrators and
successors.
11.5 Headings. Section headings in this Agreement are included for
convenience of reference only and shall not relate to the
interpretation or construction of this Agreement.
11.6 Governing Law. This Agreement shall be deemed to be a contract made
under, and to be construed in accordance with, the laws of the
State of New Jersey, without giving effect to conflicts of law.
11.7 Validity. If any provision of this Agreement is held to be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate this
Agreement as a whole, but this Agreement shall be construed as though it did not
contain the particular provision held to be invalid or unenforceable and the
rights and obligations of the parties hereto shall be construed and enforced
only to such extent as may be permitted by applicable law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first above written.
OPUS DIAGNOSTICS, INC.
By:
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Name:
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Title:
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CHIEF EXECUTIVE OFFICE:
Xxx Xxxxxx Xxxxx,
Xxxx Xxx, Xxx Xxxxxx 00000
AGREED TO:
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XXXXXXX XXXXXX, for himself and
as Agent for the Holders.
CAPRIUS, INC.
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By:
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