SECURITY AGREEMENT
Exhibit
10.3
This Security Agreement, dated as of December 29, 2010 (this “Security
Agreement”), is made by Transgenomic, Inc., a Delaware corporation (the “Company”), in
favor of PGxHealth, LLC, a Delaware limited liability company (together with its
successors or assigns, “Secured Party”). Capitalized terms used and not otherwise defined herein
are intended to have the meanings given to them in the Purchase Agreement (as defined below).
Recitals
Whereas, Secured Party is a party to that certain Asset Purchase Agreement, dated
November 29, 2010, by and among the Company, Secured Party and Clinical Data, Inc., a Delaware
corporation (“Clinical Data”), as amended by that certain Amendment to Asset Purchase Agreement,
dated December 29, 2010, by and among the Company, Secured Party and Clinical Data (the “Purchase
Agreement”);
Whereas, pursuant to the terms of the Purchase Agreement, the Company has issued to
Secured Party (i) a secured promissory note dated as of the date hereof in the initial aggregate
principal amount of $8,639,650 (as amended, supplemented or otherwise modified from time to time,
the “First Note”) and (ii) a secured promissory note dated as of the date hereof in the initial
aggregate principal amount of $988,500 (as amended, supplemented or otherwise modified from time to
time, the “Second Note” and together with the First Note, the “Notes”); and
Whereas, it is a condition to Secured Party’s acceptance of the Notes that the
Company shall have granted the security interests and undertaken the obligations contemplated by
the Notes and this Security Agreement.
Agreement
Now, Therefore, in consideration for the agreements set forth herein and in order to
induce Secured Party to consummate the transactions contemplated by the Purchase Agreement, the
Company hereby agrees with Secured Party as follows:
1. Defined Terms. When used in this Security Agreement, the following terms shall
have the following meanings (such meanings being equally applicable to both the singular and plural
forms of the terms defined):
“Collateral” shall have the meaning assigned to such term in Section 2 of this Security
Agreement.
“Contracts” means all contracts (including any customer, vendor, supplier, service or
maintenance contract), leases, licenses, undertakings, purchase orders, permits, franchise
agreements or other agreements (other than any right evidenced by Chattel Paper, Documents or
Instruments), whether in written or electronic form, in or under which the Company now holds or
hereafter acquires any right, title or interest, including, without limitation, with respect to an
Account, any agreement relating to the terms of payment or the terms of performance thereof.
“Copyright License” means any agreement, whether in written or electronic form, in which the
Company now holds or hereafter acquires any interest, granting any right in or to any Copyright or
Copyright registration (whether the Company is the licensee or the licensor thereunder) including,
without limitation, licenses pursuant to which the Company has obtained the exclusive right to use
a copyright owned by a third party.
“Copyrights” means all of the following now owned or hereafter acquired or created (as a work
for hire for the benefit of the Company) by the Company or in which the Company now holds or
hereafter acquires or receives any right or interest, in whole or in part: (a) all copyrights,
whether registered or unregistered, held pursuant to the laws of the United States, any State
thereof or any other country; (b) registrations, applications, recordings and proceedings in the
United States Copyright Office or in any similar office or agency of the United States, any State
thereof or any other country; (c) any continuations, renewals or extensions thereof; (d) any
registrations to be issued in any pending applications, and shall include any right or interest in
and to work protectable by any of the foregoing which are presently or in the future owned, created
or authorized (as a work for hire for the benefit of the Company) or acquired by the Company, in
whole or in part; (e) prior versions of works covered by copyright and all works based upon,
derived from or incorporating such works; (f) income, royalties, damages, claims and payments now
and hereafter due and/or payable with respect to copyrights, including, without limitation,
damages, claims and recoveries for past, present or future infringement; (g) rights to xxx for
past, present and future infringements of any copyright; and (h) any other rights corresponding to
any of the foregoing rights throughout the world.
“Event of Default” means (i) any failure by the Company forthwith to pay or perform any of the
Secured Obligations, (ii) any report, information or notice made to, obtained or received by
Secured Party at any time after the date hereof shall indicate that Secured Party’s security
interest in the Collateral is not prior to all other security interests or other interests in the
Collateral reflected in such report, information or notice, (iii) any breach by the Company of any
warranty, representation, or covenant set forth herein, and (iv) any “Event of Default” as defined
in the Notes.
“Intellectual Property” means any intellectual property, in any medium, of any kind or nature
whatsoever, now or hereafter owned or acquired or received by the Company or in which the Company
now holds or hereafter acquires or receives any right or interest, and shall include, in any event,
any Copyright, Trademark, Patent, License, trade secret, customer list, marketing plan, internet
domain name (including any right related to the registration thereof), proprietary or confidential
information, mask work, source, object or other programming code, invention (whether or not
patented or patentable), technical information, procedure, design, knowledge, know-how, software,
data base, data, skill, expertise, recipe, experience, process, model, drawing, material or record.
“IP Security Agreement” means the Intellectual Property Security Agreement of even date
herewith by and between the Company and Secured Party and all Schedules thereto, as the same may
from time to time be amended, modified, supplemented or restated.
“License” means any Copyright License, Patent License, Trademark License or other license of
rights or interests, whether in-bound or out-bound, whether in written or electronic
form, now or hereafter owned or acquired or received by the Company or in which the Company
now holds or hereafter acquires or receives any right or interest, and shall include any renewals
or extensions of any of the foregoing thereof.
“Lien” means any mortgage, lien, deed of trust, charge, pledge, security interest or other
encumbrance.
“Patent License” means any agreement, whether in written or electronic form, in which the
Company now holds or hereafter acquires any interest, granting any right with respect to any
invention on which a Patent is in existence (whether the Company is the licensee or the licensor
thereunder).
“Patents” means all of the following in which the Company now holds or hereafter acquires any
interest: (a) all letters patent of the United States or any other country, all registrations and
recordings thereof and all applications for letters patent of the United States or any other
country, including, without limitation, registrations, recordings and applications in the United
States Patent and Trademark Office or in any similar office or agency of the United States, any
State thereof or any other country; (b) all reissues, divisions, continuations, renewals,
continuations-in-part or extensions thereof; (c) all xxxxx patents, divisionals and patents of
addition; (d) all patents to issue in any such applications; (e) income, royalties, damages, claims
and payments now and hereafter due and/or payable with respect to patents, including, without
limitation, damages, claims and recoveries for past, present or future infringement; and (f) rights
to xxx for past, present and future infringements of any patent.
“Permitted Lien” means: (a) material Liens for taxes, fees, assessments or other governmental
charges or levies, either not delinquent or being contested in good faith by appropriate
proceedings, provided the same have no priority over any of Secured Party’s security interests
created hereunder; (b) Liens (i) upon or in any Equipment acquired or held by the Company to secure
the purchase price of such Equipment or indebtedness incurred solely for the purpose of financing
the acquisition of such Equipment provided in each case such lien does not secure more than the
purchase price of such Equipment or (ii) existing on such Equipment at the time of its acquisition,
provided that the Lien is confined solely to the Equipment so acquired, improvements thereon and
the proceeds of such Equipment; (c) leases or subleases and non-exclusive licenses or non-exclusive
sublicenses granted to others in the ordinary course of the Company’s business if such are
otherwise permitted under this Security Agreement and do not interfere in any material respect with
the business of the Company; (d) any right, title or interest of a licensor under a license
provided that such license or sublicense does not prohibit the grant of the security interest
granted hereunder; (e) Liens arising from judgments, decrees or attachments to the extent and only
so long as such judgment, decree or attachment has not caused or resulted in an Event of Default;
(f) easements, reservations, rights-of-way, restrictions, minor defects or irregularities in title
and other similar Liens affecting real property not interfering in any material respect with the
ordinary conduct of the business of the Company; (g) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in connection with the
importation of goods; (h) Liens arising solely by virtue of any statutory or common law provision
relating to banker’s liens, rights of setoff or similar rights and remedies as to deposit accounts
or other funds maintained with a creditor depository institution;
and (j) Liens, not otherwise permitted, which do not in the aggregate exceed $35,000 at any
one time.
“Secured Obligations” means (a) the obligation of the Company to repay Secured Party all of
the unpaid principal amount of, and accrued interest on (including any interest that accrues after
the commencement of bankruptcy), the Notes, and the performance when due of all covenants and
agreements by the Company under the Notes and this Security Agreement, and (b) the obligation of
the Company to pay any fees, costs or expenses of Secured Party under the Notes, this Security
Agreement, or the IP Security Agreement, if any.
“Trademark License” means any agreement, whether in written or electronic form, in which the
Company now holds or hereafter acquires any interest, granting any right in and to any Trademark or
Trademark registration (whether the Company is the licensee or the licensor thereunder).
“Trademarks” means any of the following in which the Company now holds or hereafter acquires
any interest: (a) any trademarks, tradenames, corporate names, company names, business names, trade
styles, service marks, logos, other source or business identifiers, prints and labels on which any
of the foregoing have appeared or appear, designs and general intangibles of like nature, now
existing or hereafter adopted or acquired, all registrations and recordings thereof and any
applications in connection therewith, including, without limitation, registrations, recordings and
applications in the United States Patent and Trademark Office or in any similar office or agency of
the United States, any State thereof or any other country (collectively, the “Marks”); (b) any
reissues, extensions or renewals thereof; (c) the goodwill of the business symbolized by or
associated with the Marks; (d) income, royalties, damages, claims and payments now and hereafter
due and/or payable with respect to the Marks, including, without limitation, damages, claims and
recoveries for past, present or future infringement; and (e) rights to xxx for past, present and
future infringements of the Marks.
“UCC” means the Uniform Commercial Code as the same may from time to time be in effect in the
State of Delaware (and each reference in this Security Agreement to an Article thereof (denoted as
a Division of the UCC as adopted and in effect in the State of Delaware) shall refer to that
Article (or Division, as applicable) as from time to time in effect; provided, however, in the
event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or
priority of Secured Party’s security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of Delaware, the term “UCC”
shall mean the Uniform Commercial Code (including the Articles thereof) as in effect at such time
in such other jurisdiction for purposes of the provisions hereof relating to such attachment,
perfection or priority and for purposes of definitions related to such provisions.
In addition, the following terms shall be defined terms having the meaning set forth for such
terms in the UCC: “Account” (including health-care-insurance receivables), “Account Debtor”,
“Chattel Paper” (including tangible and electronic chattel paper), “Commercial Tort Claims”,
“Commodity Account”, “Deposit Account”, “Documents”, “Equipment” (including all accessions and
additions thereto), “Fixtures”, “General Intangible”, “Goods”, “Instrument”, “Inventory”,
“Investment Property”, “Letter-of-Credit Right”, “Money”, “Payment Intangibles”,
“Proceeds”, “Promissory Notes”, “Securities Account”, and “Supporting Obligations”. Each of
the foregoing defined terms shall include all of such items now owned or hereafter acquired by the
Company and wherever the same may be located. Any other capitalized terms used herein and not
defined herein shall have the meanings given to such terms in the Notes or Purchase Agreement.
2. Grant of Security Interest. As collateral security for the full, prompt,
complete and final payment and performance when due (whether at stated maturity, by acceleration or
otherwise) of all the Secured Obligations and in order to induce Secured Party to close the
transactions contemplated by the Purchase Agreement, the Company hereby assigns, conveys,
mortgages, pledges, hypothecates and transfers to Secured Party, and hereby grants to Secured
Party, a security interest in all of the Company’s right, title and interest in, to and under all
of the assets of the Company, wherever the same may be located (all of which being collectively
referred to herein as the “Collateral”), including the following:
(a) All Accounts of the Company;
(b) All Chattel Paper of the Company more particularly described on Schedule B attached
hereto;
(c) The Commercial Tort Claims of the Company more particularly described on Schedule A
attached hereto;
(d) All Commodity Accounts of the Company more particularly described on Schedule C attached
hereto;
(e) All Contracts of the Company;
(f) All Deposit Accounts of the Company more particularly described on Schedule C attached
hereto;
(g) All Documents of the Company;
(h) All General Intangibles of the Company, including, without limitation, Intellectual
Property;
(i) All Goods of the Company, including without limitation, Equipment, Inventory and Fixtures;
(j) All Instruments of the Company, including, without limitation, Promissory Notes more
particularly described on Schedule B attached hereto;
(k) All Investment Property of the Company more particularly described on Schedule B attached
hereto;
(l) All Letter-of Credit Rights of the Company;
(m) All Money of the Company;
(n) All Securities Accounts of the Company more particularly described on Schedule C attached
hereto;
(o) All Supporting Obligations of the Company;
(p) All property of the Company held by Secured Party, or any other party for whom Secured
Party is acting as agent, including, without limitation, all property of every description now or
hereafter in the possession or custody of or in transit to Secured Party or such other party for
any purpose, including, without limitation, safekeeping, collection or pledge, for the account of
the Company, or as to which the Company may have any right or power;
(q) All other goods and personal property of the Company, wherever located, whether tangible
or intangible, and whether now owned or hereafter acquired, existing, leased or consigned by or to
the Company; and
(r) To the extent not otherwise included, all Proceeds of each of the foregoing and all
accessions to, substitutions and replacements for and rents, profits and products of each of the
foregoing.
If the Company shall at any time acquire a Commercial Tort Claim, the Company shall
immediately notify Secured Party in a writing signed by the Company of the brief details thereof
and grant to Secured Party in such writing a security interest therein and in the proceeds thereof,
all upon the terms of this Security Agreement, with such writing to be in form and substance
satisfactory to Secured Party.
3. Rights Of Secured Party; Collection Of Accounts.
3.1 Obligations of the Company. Notwithstanding anything contained in this Security Agreement
to the contrary, the Company expressly agrees that it shall remain liable under each of the Assumed
Contracts to observe and perform all the conditions and obligations to be observed and performed by
it thereunder and that it shall perform all of its duties and obligations thereunder, all in
accordance with and pursuant to the terms and provisions of each such Assumed Contract. Secured
Party shall not have any obligation or liability under any Assumed Contract by reason of or arising
out of this Security Agreement or the granting to Secured Party of a lien therein or the receipt by
Secured Party of any payment relating to any Assumed Contract pursuant hereto, nor shall Secured
Party be required or obligated in any manner to perform or fulfill any of the obligations of the
Company under or pursuant to any Assumed Contract, or to make any payment, or to make any inquiry
as to the nature or the sufficiency of any payment received by it or the sufficiency of any
performance by any party under any Assumed Contract, or to present or file any claim, or to take
any action to collect or enforce any performance or the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
3.2 Collections. Secured Party authorizes the Company to collect its Accounts constituting
Collateral, provided that such collection is performed in a prudent and businesslike manner, and
Secured Party may, upon the occurrence and during the continuation of any Event of Default and
without notice, limit or terminate said authority at any time. Upon the
occurrence and during the continuance of any Event of Default, at the request of Secured
Party, the Company shall deliver all original and other documents evidencing and relating to the
performance of labor or service which created such Accounts constituting Collateral, including,
without limitation, all original orders, invoices and shipping receipts.
3.3 Notification of Third Parties. Secured Party may at any time, upon the occurrence and
during the continuance of any Event of Default, upon written notice to the Company of its intention
to do so, notify Account Debtors of the Company on Accounts constituting Collateral, parties to the
Assumed Contracts of the Company, and obligors in respect of Instruments of the Company
constituting Collateral that the Accounts constituting Collateral and the right, title and interest
of the Company in and under such Assumed Contracts and Instruments constituting Collateral have
been assigned to Secured Party and that payments shall be made directly to Secured Party. Upon the
request of Secured Party upon and during the pendency of an Event of Default, the Company shall so
notify such Account Debtors of the Company on Accounts constituting Collateral, parties to such
Assumed Contracts and obligors in respect of such Instruments of the Company constituting
Collateral. Upon the occurrence and during the continuance of any Event of Default, Secured Party
may, in its name or in the name of others, communicate with such Account Debtors, parties to such
Assumed Contracts, and obligors in respect of such Instruments to verify with such parties, to
Secured Party’s satisfaction, the existence, amount and terms of any such Accounts, Contracts,
Instruments or Chattel Paper.
4. Representations And Warranties. The Company hereby represents and warrants to
Secured Party that:
4.1 Ownership of Collateral. Except for the security interest granted to Secured Party under
this Security Agreement and Permitted Liens, the Company is the sole legal and equitable owner of
each item of the Collateral in which it purports to grant a security interest hereunder.
4.2 No Other Liens. No effective security agreement, financing statement, equivalent security
or lien instrument or continuation statement covering all or any part of the Collateral exists,
except such as may have been filed by the Company in favor of Secured Party pursuant to this
Security Agreement and except for Permitted Liens.
4.3 Security Interest. This Security Agreement creates a legal and valid first priority
security interest on and in all of the Collateral in which the Company now has rights.
5. Covenants of the Company. The Company covenants and agrees with Secured Party
that from and after the date of this Security Agreement and until the Secured Obligations have been
performed and paid in full:
5.1 Change of Jurisdiction of Organization, Relocation of Business or Collateral. The
Company’s principal place of business and the place where its records concerning the Collateral are
kept is at Transgenomic, Inc., 00000 Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, and the Company shall not
change its jurisdiction of organization, relocate its
principal place of business, remove such records or allow the relocation of any Collateral
(except as allowed pursuant to Section 6.2) without thirty (30) days prior written notice to
Secured Party.
5.2 Limitation on Liens on Collateral. The Company shall not, directly or indirectly, create,
permit or suffer to exist, and shall defend the Collateral against and take such other action as is
necessary to remove, any Lien on the Collateral, except for Permitted Liens and the Lien granted to
Secured Party under this Security Agreement. The Company shall further use commercially reasonable
efforts to defend the right, title and interest of Secured Party in and to any of the Company’s
rights under the Collateral against the material claims and demands brought by third parties.
5.3 Limitations on Modifications of Accounts, Etc. Upon the occurrence and during the
continuance of any Event of Default, the Company shall not, without Secured Party’s prior written
consent, grant any extension of the time of payment of any of the Accounts, Chattel Paper,
Instruments or amounts due under any Contract or Document, compromise, compound or settle the same
for less than the full amount thereof, release, wholly or partly, any person liable for the payment
thereof, or allow any credit or discount whatsoever thereon other than trade discounts and rebates
granted in the ordinary course of the Company’s business.
5.4 Insurance. The Company shall maintain insurance policies insuring the Collateral against
loss or damage from such risks and in such amounts and forms and with such companies as are
customarily maintained by businesses similar to the Company.
5.5 Taxes, Assessments, Etc. The Company shall pay promptly when due all property and other
taxes, assessments and government charges or levies imposed upon, and all claims (including claims
for labor, materials and supplies) against the Equipment constituting Collateral, except to the
extent the validity thereof is being contested in good faith and adequate reserves are being
maintained in connection therewith.
5.6 Maintenance of Records. The Company shall keep and maintain at its own cost and expense
satisfactory and complete records of the Collateral. The Company shall not create any Chattel
Paper without placing a legend on the Chattel Paper acceptable to Secured Party indicating that
Secured Party has a security interest in the Chattel Paper.
5.7 Notification Regarding Changes in Intellectual Property. The Company shall:
(a) promptly advise Secured Party in writing of any subsequent ownership right or interest of
the Company in or to any Copyright, Patent, Trademark or License;
(b) promptly give Secured Party written notice of any applications or registrations of
intellectual property rights pertaining to Patents or Trademarks filed with the United States
Patent and Trademark Office, including the date of such filing and the registration or application
numbers, if any; and
(c) prior to the filing of any such applications or registrations, shall execute such
documents as Secured Party may reasonably request for Secured Party to maintain its perfection and
priority in such intellectual property rights to be registered by the Company, and
upon the request of Secured Party, shall file such documents simultaneously with the filing of
any such applications or registrations.
5.8 Defense of Intellectual Property. The Company shall (a) protect, defend and maintain the
validity and enforceability of its Patents and Trademarks, (b) use its commercially reasonable
efforts to detect infringements of its Patents and Trademarks and promptly advise Secured Party in
writing of material infringements detected and (c) not allow any of its Patents or Trademarks to be
abandoned, forfeited or dedicated to the public without the prior written consent of Secured Party.
5.9 Further Assurances; Pledge of Instruments. At any time and from time to time, upon the
written request of Secured Party, and at the sole expense of the Company, the Company shall
promptly and duly execute and deliver any and all such further instruments and documents and take
such further action as Secured Party may reasonably deem necessary or desirable to obtain the full
benefits of this Security Agreement, including, without limitation, (a) using its commercially
reasonable efforts to secure all consents and approvals necessary or appropriate for the grant of a
security interest to Secured Party in any item of Collateral held by the Company or in which the
Company has any right or interest, (b) executing, delivering and causing to be filed any financing
or continuation statements (including “in lieu” continuation statements) under the UCC with respect
to the security interests granted hereby, (c) filing or cooperating with Secured Party in filing
any forms or other documents required to be recorded with the United States Patent and Trademark
Office, United States Copyright Office, or any actions, filings, recordings or registrations in any
foreign jurisdiction or under any international treaty, required to secure or protect Secured
Party’s interest in the Collateral, (d) transferring the Collateral to Secured Party’s possession
(if a security interest in such Collateral can be perfected only by possession), (e) at Secured
Party’s reasonable request, placing the interest of Secured Party as lienholder on the certificate
of title (or similar evidence of ownership) of any vehicle or other item of Collateral owned by the
Company which is covered by a certificate of title (or similar evidence of ownership), (f)
executing and delivering and causing the applicable depository institution, securities
intermediary, commodity intermediary or issuer or nominated party under a letter of credit to
execute and deliver a collateral control agreement with respect to each Deposit Account, Securities
Account or Commodity Account or Letter-of-Credit Right in or to which the Company now or hereafter
has any right or interest in order to perfect the security interest created hereunder in favor of
Secured Party (including giving Secured Party “control” over such Collateral within the meaning of
the applicable provisions of Article 8 and Article 9 of the UCC), (g) at Secured Party’s reasonable
request, executing and delivering or causing to be delivered written notice to insurers of Secured
Party’s security interest in, or claim in or under, any policy of insurance (including unearned
premiums) and (h) at Secured Party’s reasonable request, using its commercially reasonable efforts
to obtain acknowledgments from bailees having possession of any Collateral with a value in excess
of $25,000 and waivers of liens from landlords and mortgagees of any location where any of
Collateral with a value in excess of $25,000 may from time to time be stored or located. Secured
Party may at any time and from time to time file financing statements, continuation statements
(including “in lieu” continuation statements) and amendments thereto that describe the Collateral
as all assets of the Company or words of similar effect. Any such financing statements,
continuation statements or amendments may be signed by Secured Party on behalf of the Company and
may be filed at any time in any jurisdiction. The Company also hereby authorizes Secured Party to
file any such financing or
continuation statement (including “in lieu” continuation statements) without the signature of
the Company.
6. Negative Covenants. The Company covenants and agrees with Secured Party that from and
after the date of this Security Agreement and until the Secured Obligations have been performed and
paid in full, the Company shall not, and shall not permit any subsidiary to:
6.1 Indebtedness. Create, issue, incur, assume, become liable in respect of or suffer to
exist any indebtedness for borrowed money other than the indebtedness incurred under the Notes and
this Security Agreement or indebtedness incurred in connection with a Permitted Lien.
6.2 Disposition of Collateral. Sell, lease, transfer or otherwise dispose of any of the
Collateral, or attempt or contract to do so, other than (a) the sale of Inventory, (b) the granting
of non-exclusive Licenses, and (c) the disposal of worn-out or obsolete Equipment, all in the
ordinary course of the Company’s business.
6.3 Restricted Payments. (a) Make any payment or prepayment of principal of, premium, if any,
or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal
defeasance), sinking fund or similar payment with respect to, any indebtedness for borrowed money,
or (b) declare or pay any dividend (other than dividends payable solely in common stock of the
Person making such dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any capital stock of the Company or any subsidiary, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of the Company or any subsidiary (collectively,
“Restricted Payments”).
7. Secured Party’s Appointment as Attorney-in-Fact; Performance by Secured Party.
(a) Subject to Section 7(b) below, the Company hereby irrevocably constitutes and appoints
Secured Party, and any officer or agent of Secured Party, with full power of substitution, as its
true and lawful attorney-in-fact with full, irrevocable power and authority in the place and stead
of the Company and in the name of the Company or in its own name, from time to time at Secured
Party’s discretion, for the purpose of carrying out the terms of this Security Agreement, to take
any and all appropriate action and to execute and deliver any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this Security Agreement and,
without limiting the generality of the foregoing, hereby gives Secured Party the power and right,
on behalf of the Company, without notice to or assent by the Company to do the following:
(i) to ask, demand, collect, receive and give acquittances and receipts for any and all monies
due or to become due under any Collateral and, in the name of the Company, in its own name or
otherwise to take possession of, endorse and collect any checks, drafts, notes, acceptances or
other Instruments for the payment of monies due under any Collateral and to file any claim or take
or commence any other action or proceeding in any court
of law or equity or otherwise deemed appropriate by Secured Party for the purpose of
collecting any and all such monies due under any Collateral whenever payable;
(ii) to pay or discharge any Liens, including, without limitation, any tax lien, levied or
placed on or threatened against the Collateral, to effect any repairs or any insurance called for
by the terms of this Security Agreement and to pay all or any part of the premiums therefor and the
costs thereof, which actions shall be for the benefit of Secured Party and not the Company;
(iii) to (1) direct any person liable for any payment under or in respect of any of the
Collateral to make payment of any and all monies due or to become due thereunder directly to
Secured Party or as Secured Party shall direct, (2) receive payment of any and all monies, claims
and other amounts due or to become due at any time arising out of or in respect of any Collateral,
(3) sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications and notices in connection with
Accounts and other Instruments and Documents constituting or relating to the Collateral, (4)
commence and prosecute any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any part thereof and to enforce any other right
in respect of any Collateral, (5) defend any suit, action or proceeding brought against the Company
with respect to any Collateral, (6) settle, compromise or adjust any suit, action or proceeding
described above, and in connection therewith, give such discharges or releases as Secured Party may
deem appropriate, (7) license, or, to the extent permitted by an applicable License, sublicense,
whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any
Copyright, Patent or Trademark throughout the world for such term or terms, on such conditions and
in such manner as Secured Party shall in its discretion determine and (8) sell, transfer, pledge,
make any agreement with respect to or otherwise deal with any of the Collateral as fully and
completely as though Secured Party were the absolute owner thereof for all purposes; and
(iv) to do, at Secured Party’s option and the Company’s expense, at any time, or from time to
time, all acts and things which Secured Party may reasonably deem necessary to protect, preserve or
realize upon the Collateral and Secured Party’s security interest therein in order to effect the
intent of this Security Agreement, all as fully and effectively as the Company might do.
(b) Secured Party agrees that, except upon the occurrence and during the continuation of an
Event of Default, it shall not exercise the power of attorney or any rights granted to Secured
Party pursuant to this Section 7. The Company hereby ratifies, to the extent permitted by law, all
that said attorney shall lawfully do or cause to be done by virtue hereof. The power of attorney
granted pursuant to this Section 7 is a power coupled with an interest and shall be irrevocable
until the Secured Obligations are completely and indefeasibly paid.
(c) If the Company fails to perform or comply with any of its agreements contained herein and
Secured Party, as provided for by the terms of this Security Agreement, shall perform or comply, or
otherwise cause performance or compliance, with such agreement, the reasonable expenses, including
reasonable attorneys’ fees and costs, of Secured Party incurred in connection with such performance
or compliance, together with interest thereon at a
rate of interest equal to the highest per annum rate of interest charged on the Loans, shall
be payable by the Company to Secured Party within five (5) business days of demand and shall
constitute Secured Obligations secured hereby.
8. Rights And Remedies Upon Default. After any Event of Default shall have occurred
and while such Event of Default is continuing:
(a) Secured Party may exercise in addition to all other rights and remedies granted to it
under this Security Agreement, the IP Security Agreement, the Notes or the Purchase Agreement and
under any other instrument or agreement securing, evidencing or relating to the Secured
Obligations, all rights and remedies of a secured party under the UCC. Without limiting the
generality of the foregoing, the Company expressly agrees that in any such event Secured Party,
without demand of performance or other demand, advertisement or notice of any kind (except the
notice specified below of time and place of public or private sale) to or upon the Company or any
other person (all and each of which demands, advertisements and notices are hereby expressly waived
to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take
possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise
for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in
connection with the liquidation of the Collateral and collection of the accounts receivable pledged
as Collateral, use any Intellectual Property, Intellectual Property Right or process used or owned
by the Company and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or
any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or
sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part
thereof, in one or more parcels at public or private sale or sales, at any exchange or broker’s
board or at any of Secured Party’s offices or elsewhere at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk. To the extent the
Company has the right to do so, the Company authorizes Secured Party, on the terms set forth in
this Section 8 to enter the premises where the Collateral is located, to take possession of the
Collateral, or any part of it, and to pay, purchase, contact, or compromise any encumbrance,
charge, or lien which, in the opinion of Secured Party, appears to be prior or superior to its
security interest. Secured Party shall have the right upon any such public sale or sales, and, to
the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part
of said Collateral so sold, free of any right or equity of redemption, which equity of redemption
the Company hereby releases. The Company further agrees, at Secured Party’s request, to assemble
the Collateral and make it available to the Secured Party at places which Secured Party shall
reasonably select, whether at the Company’s premises or elsewhere. Secured Party shall apply the
net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as
provided in Section 8(f), below and only after so paying over such net proceeds and after the
payment by Secured Party of any other amount required by any provision of law, need Secured Party
account for the surplus, if any, to the Company. To the maximum extent permitted by applicable
law, the Company waives all claims, damages, and demands against Secured Party arising out of the
repossession, retention or sale of the Collateral. The Company agrees that Secured Party need not
give more than ten (10) days’ notice of the time and place of any public sale or of the time after
which a private sale may take place and that such notice is reasonable notification of such
matters. The Company shall remain liable for any deficiency if the proceeds of any sale or
disposition of the Collateral are insufficient to pay all
amounts to which Secured Party is entitled from the Company, the Company also being liable for
the attorney costs of any attorneys employed by Secured Party to collect such deficiency.
(b) As to any Collateral constituting certificated securities or uncertificated securities,
if, at any time when Secured Party shall determine to exercise its right to sell the whole or any
part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for
any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so
amended the “Act”), Secured Party may, in its discretion (subject only to applicable requirements
of law), sell such Collateral or part thereof by private sale in such manner and under such
circumstances as Secured Party may deem necessary or advisable, but subject to the other
requirements of this Section 8(b), and shall not be required to effect such registration or cause
the same to be effected. Without limiting the generality of the foregoing, in any such event
Secured Party may, in its sole discretion, (i) in accordance with applicable securities laws,
proceed to make such private sale notwithstanding that a registration statement for the purpose of
registering such Collateral or part thereof could be or shall have been filed under the Act; (ii)
approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict
such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own
account, for investment, and not with a view to the distribution or sale of such Collateral or part
thereof. In addition to a private sale as provided above in this Section 8(b), if any of such
Collateral shall not be freely distributable to the public without registration under the Act at
the time of any proposed sale hereunder, then Secured Party shall not be required to effect such
registration or cause the same to be effected but may, in its sole discretion (subject only to
applicable requirements of law), require that any sale hereunder (including a sale at auction) be
conducted subject to such restrictions as Secured Party may, in its sole discretion, deem necessary
or appropriate in order that such sale (notwithstanding any failure so to register) may be effected
in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’
rights and the Act and all applicable state securities laws.
(c) The Company agrees that in any sale of any of such Collateral, whether at a foreclosure
sale or otherwise, Secured Party is hereby authorized to comply with any limitation or restriction
in connection with such sale as it may be advised by counsel is necessary in order to avoid any
violation of applicable law (including compliance with such procedures as may restrict the number
of prospective bidders and purchasers, require that such prospective bidders and purchasers have
certain qualifications and restrict such prospective bidders and purchasers to persons who will
represent and agree that they are purchasing for their own account for investment and not with a
view to the distribution or resale of such Collateral), or in order to obtain any required approval
of the sale or of the purchaser by any governmental authority, and the Company further agrees that
such compliance shall not result in such sale being considered or deemed not to have been made in a
commercially reasonable manner, nor shall Secured Party be liable nor accountable to the Company
for any discount allowed by the reason of the fact that such Collateral is sold in compliance with
any such limitation or restriction.
(d) The Company also agrees to pay all fees, costs and expenses of Secured Party, including,
without limitation, reasonable attorneys’ fees, incurred in connection with the enforcement of any
of its rights and remedies hereunder.
(e) The Company hereby waives presentment, demand, protest or any notice (to the maximum
extent permitted by applicable law) of any kind in connection with this Security Agreement or any
Collateral.
(f) The Proceeds of any sale, disposition or other realization upon all or any part of the
Collateral shall be distributed by Secured Party in the following order of priorities:
First, to Secured Party in an amount sufficient to pay in full the costs of Secured
Party in connection with such sale, disposition or other realization, including all fees, costs,
expenses, liabilities and advances incurred or made by Secured Party in connection therewith,
including, without limitation, attorneys’ fees;
Second, to Secured Party in an amount equal to the then unpaid Secured Obligations;
and
Finally, upon payment in full of the Secured Obligations, to the Company or its
representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
9. Indemnity. The Company agrees to defend, indemnify and hold harmless Secured
Party and its officers, employees, and agents against: (a) all obligations, demands, claims, and
liabilities claimed or asserted by any other party in connection with the transactions contemplated
by this Security Agreement; and (b) all losses or expenses in any way suffered, incurred, or paid
by Secured Party as a result of or in any way arising out of, following or consequential to
transactions between Secured Party and the Company, under this Security Agreement (including
without limitation, reasonable attorneys fees and expenses), except for losses arising from or out
of Secured Party’s gross negligence or willful misconduct.
10. Limitation on Secured Party’s Duty in Respect of Collateral. Secured Party shall
be deemed to have acted reasonably in the custody, preservation and disposition of any of the
Collateral if it takes such action as the Company requests in writing except during an Event of
Default, but failure of Secured Party to comply with any such request shall not in itself be deemed
a failure to act reasonably, and no failure of Secured Party to do any act not so requested shall
be deemed a failure to act reasonably.
11. Reinstatement. This Security Agreement shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company for liquidation or
reorganization, should the Company become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any significant part of the
Company’s property and assets, and shall continue to be effective or be reinstated, as the case may
be, if at any time payment and performance of the Secured Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a “voidable preference,” “fraudulent
conveyance,” or otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the
Secured Obligations shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
12. Miscellaneous.
12.1 Waivers; Modifications. None of the terms or provisions of this Security Agreement may
be waived, altered, modified or amended except by an instrument in writing, duly executed by the
Company and Secured Party.
12.2 Termination of this Security Agreement. Subject to Section 9 hereof, this Security
Agreement shall terminate upon the payment and performance in full of the Secured Obligations.
12.3 Successor and Assigns. This Security Agreement and all obligations of the Company
hereunder shall be binding upon the successors and assigns of the Company, and shall, together with
the rights and remedies of Secured Party hereunder, inure to the benefit of Secured Party, any
future holder of the Notes and their respective successors and assigns.
12.4 Governing Law. In all respects, including all matters of construction, validity and
performance, this Security Agreement and the Secured Obligations arising hereunder shall be
governed by, and construed and enforced in accordance with, the laws of the State of Delaware
applicable to contracts made and performed in such state, without regard to the principles thereof
regarding conflict of laws, except to the extent that the UCC provides for the application of the
law of another state.
12.5 Counterparts. This Security Agreement may be executed in counterparts and by facsimile
signatures, any one of which need not contain the signatures of more than one Party and each of
which shall be an original, but all such counterparts taken together shall constitute one and the
same instrument. The exchange of copies of this Security Agreement or amendments thereto and of
signature pages by facsimile transmission or by e-mail transmission in portable digital format (or
similar format) shall constitute effective execution and delivery of such instrument(s) as to the
Parties and may be used in lieu of the original Security Agreement or amendment for all purposes.
Signatures of the Parties transmitted by facsimile or by e-mail transmission in portable digital
format (or similar format) shall be deemed to be their original signatures for all purposes.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
In Witness Whereof, each of the parties hereto has caused this Security Agreement to
be executed and delivered by its duly authorized officer on the date first set forth above.
| COMPANY: Transgenomic, Inc. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx | ||||
| President and Chief Executive Officer | ||||
SECURED PARTY:
PGxHealth, LLC
By: PGxHealth Holding, Inc.
Its: Sole Member
Its: Sole Member
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Printed Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Legal Officer | |||
[Signature Page to Security Agreement]
Schedule A
COMMERCIAL TORT CLAIMS
None.
Schedule B
LIST OF CHATTEL PAPER, INSTRUMENTS, AND INVESTMENT PROPERTY
(CERTIFICATED SECURITIES)
(CERTIFICATED SECURITIES)
None.
Schedule C
DEPOSIT ACCOUNTS, SECURITIES ACCOUNTS AND COMMODITY ACCOUNTS
(Including Type of Account, Account Name, Account Number and Name and Address of
Institution/Intermediary)
