SECURITY AGREEMENT
SECURITY
AGREEMENT DATED JULY 31, 2006
Exhibit
4.4
SECURITY AGREEMENT (this “Agreement”), dated as of September 1,
2010 by and
among Univec, Inc., a
Delaware corporation
(“Parent”), Physician and Pharmaceutical Services,
Inc. (the “Subsidiary”)(hereinafter the Parent and the
Subsidiary shall collectively be referred to as the “Company”) and the secured parties signatory
hereto and their respective endorsees, transferees and
assigns (collectively, the “Secured
Party”).
WITNESSETH:
WHEREAS, pursuant to a Securities
Purchase Agreement, dated the date hereof, between Parent and the Secured Party
(the “Purchase
Agreement”), Parent has
agreed to issue to the Secured Party and the Secured Party has agreed to
purchase from Parent certain of Parent’s 12% Callable Secured Convertible Notes,
due three years from the date of issue (the “Notes”), which are convertible into
shares of Company’s Common
Stock, par
value $0.001 share (the “Common
Stock”);
and
WHEREAS, the Parent and the Subsidiary
have been, and are now, engaged in the pharmaceutical sample and group
purchasing services of pharmaceutical products. In the past, as now, the Parent has
provided financing for the Subsidiary, and the Subsidiary has relied upon the
Parent to provide such financing. In addition, it is anticipated
that, if the Subsidiary executes and delivers this , the Parent will continue to
provide such financing to the Subsidiary, and that the proceeds of the Purchase
Agreement and Notes may be used, in part, for the general
working capital purposes of the Subsidiary; and
WHEREAS, the Subsidiary constitutes all of the
subsidiaries of the Parent and it is in the best interest of the
Subsidiary as subsidiaries of the Parent and the indirect beneficiaries of the
Purchase Agreement and Notes, that the Secured Party enter into the Purchase
Agreement and purchase the Notes to the Company; and
WHEREAS, in order to induce the Secured
Party to purchase the Notes, Company has agreed to execute and deliver to the
Secured Party this Agreement for the benefit of the Secured Party and to grant
to it a first priority security interest in certain property of Company to
secure the prompt payment, performance and discharge in full of all of Company’s
obligations under the Notes; and
WHEREAS, in light of the foregoing, the
Company expects to derive substantial benefit from the Purchase Agreement and
sale of the Notes and the transactions contemplated thereby and, in furtherance
thereof, has agreed to execute and deliver this.
NOW, THEREFORE, in consideration of the
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Certain
Definitions. As
used in this Agreement, the following terms shall have the meanings set forth in
this Section 1. Terms used but not otherwise defined in this
Agreement that are defined in Article 9 of the UCC (such as “general
intangibles” and
“proceeds”) shall have the respective meanings
given such terms in Article 9 of the UCC.
(a) “Collateral” means the collateral in which the
Secured Party is granted a security interest by this Agreement and which shall
include the following, whether presently owned or existing or hereafter acquired
or coming into existence, and all additions and accessions thereto and all
substitutions and replacements thereof, and all proceeds, products and accounts
thereof, including, without limitation, all proceeds from the sale or transfer
of the Collateral and of insurance covering the same and of any tort claims in
connection therewith:
(i) All Goods of the Company, including,
without limitations, all machinery, equipment, computers, motor vehicles,
trucks, tanks, boats, ships, appliances, furniture, special and general tools,
fixtures, test and quality control devices and other equipment of every kind and
nature and wherever situated, together with all documents of title and documents
representing the same, all additions and accessions thereto, replacements
therefor, all parts therefor, and all substitutes for any of the foregoing and
all other items used and useful in connection with the Company’s businesses and
all improvements thereto (collectively, the “Equipment”); and
(ii) All Inventory of the Company;
and
(iii) All of the Company’s contract rights and
general intangibles, including, without limitation, all partnership interests,
stock or other securities, licenses, distribution and other agreements, computer
software development rights, leases, franchises, customer lists, quality control
procedures, grants and rights, goodwill, trademarks, service marks, trade
styles, trade names, patents, patent applications, copyrights, deposit accounts,
and income tax refunds (collectively, the “General
Intangibles”);
and
(iv) All Receivables of the Company including
all insurance proceeds, and rights to refunds or indemnification whatsoever
owing, together with all instruments, all documents of title representing any of
the foregoing, all rights in any merchandising, goods, equipment, motor vehicles
and trucks which any of the same may represent, and all right, title, security
and guaranties with respect to each Receivable, including any right of stoppage
in transit; and
(v) All of the Company’s documents,
instruments and chattel paper, files, records, books of account, business
papers, computer programs and the products and proceeds of all of the foregoing
Collateral set forth in clauses (i)-(iv) above.
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(b) “Company” shall mean, collectively, Company and
all of the subsidiaries of Company, a list of which is contained in Schedule
A, attached
hereto.
(c) “Obligations” means all of the Company’s obligations
under this Agreement and the Notes, in each case, whether now or hereafter
existing, voluntary or involuntary, direct or indirect, absolute or contingent,
liquidated or unliquidated, whether or not jointly owed with others, and whether
or not from time to time decreased or extinguished and later decreased, created
or incurred, and all or any portion of such obligations or liabilities that are
paid, to the extent all or any part of such payment is avoided or recovered
directly or indirectly from the Secured Party as a preference, fraudulent
transfer or otherwise as such obligations may be amended, supplemented,
converted, extended or modified from time to time.
(d) “UCC” means the Uniform Commercial Code, as
currently in effect in the State of New York.
2. Grant of
Security Interest. As an inducement for the
Secured Party to purchase the Notes and to secure the complete and timely
payment, performance and discharge in full, as the case may be, of all of the
Obligations, the Company hereby, unconditionally and irrevocably, pledges,
grants and hypothecates to the Secured Party, a continuing security interest in,
a continuing first lien upon, an unqualified right to possession and disposition
of and a right of set-off against, in each case to the fullest extent permitted
by law, all of the Company’s right, title and interest of whatsoever kind and
nature in and to the Collateral (the “Security
Interest”).
3. Representations,
Warranties, Covenants and Agreements of the Company. The Company represents and
warrants to, and covenants and agrees with, the Secured Party as
follows:
(a) The Company has the requisite corporate
power and authority to enter into this Agreement and otherwise to carry out its
obligations thereunder. The execution, delivery and performance by
the Company of this Agreement and the filings contemplated therein have been
duly authorized by all necessary action on the part of the Company and no
further action is required by the Company. This Agreement constitutes
a legal, valid and binding obligation of the Company enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditor’s rights generally.
(b) The Company represents and warrants that
it has no place of business or offices where its respective books of account and
records are kept (other than temporarily at the offices of its attorneys or
accountants) or places where Collateral is stored or located, except as set
forth on Schedule
A attached
hereto;
(c) The Company is the sole owner of the
Collateral (except for non-exclusive licenses granted by the Company in the
ordinary course of business), free and clear of any liens, security interests,
encumbrances, rights or claims, and is fully authorized to grant the Security
Interest in and to pledge the Collateral. There is not on file in any
governmental or regulatory authority, agency or recording office an effective
financing statement, security agreement, license or transfer or any notice of
any of the foregoing (other than those that have been filed in favor of the
Secured Party pursuant to this Agreement) covering or affecting any of
the Collateral. So long as this Agreement shall be in
effect, the Company shall not execute and shall not knowingly permit to be on
file in any such office or agency any such financing statement or other document
or instrument (except to the extent filed or recorded in favor of the Secured
Party pursuant to the terms of this Agreement).
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(d) No part of the Collateral has been
judged invalid or unenforceable. No written claim has been received
that any Collateral or the Company’s use of any Collateral violates the rights
of any third party. There has been no adverse decision to the Company’s claim of
ownership rights in or exclusive rights to use the Collateral in any
jurisdiction or to the Company’s right to keep and maintain such Collateral in
full force and effect, and there is no proceeding involving said rights pending
or, to the best knowledge of the Company, threatened before any court, judicial
body, administrative or regulatory agency, arbitrator or other governmental
authority.
(e) The Company shall at all times maintain
its books of account and records relating to the Collateral at its principal
place of business and its Collateral at the locations set forth on Schedule
A attached hereto and may
not relocate such books of account and records or tangible Collateral unless it
delivers to the Secured Party at least 30 days prior to such relocation (i)
written notice of such relocation and the new location thereof (which must be
within the United States) and (ii) evidence that appropriate financing
statements and other necessary documents have been filed and recorded and other
steps have been taken to perfect the Security Interest to create in favor of the
Secured Party valid, perfected and continuing first priority liens in the
Collateral.
(f) This Agreement creates in favor of the
Secured Party a valid security interest in the Collateral securing the payment
and performance of the Obligations and, upon making the filings described in the
immediately following sentence, a perfected first priority security interest in
such Collateral. Except for the filing of financing statements on
Form-1 under the UCC with the jurisdictions indicated on Schedule
B, attached hereto, no
authorization or approval of or filing with or notice to any governmental
authority or regulatory body is required either (i) for the grant by the Company of, or the
effectiveness of, the Security Interest granted hereby or for the execution,
delivery and performance of this Agreement by the Company or (ii) for the perfection of or exercise by the
Secured Party of its rights and remedies hereunder.
(g) On the date of execution of this
Agreement, the Company will deliver to the Secured Party one or more executed
UCC financing statements on Form-1 with respect to the Security Interest for
filing with the jurisdictions indicated on Schedule
B, attached hereto and in
such other jurisdictions as may be requested by the Secured
Party.
(h) The execution, delivery and performance
of this Agreement does not conflict with or cause a breach or default, or an
event that with or without the passage of time or notice, shall constitute a
breach or default, under any agreement to which the Company is a party or by
which the Company is bound. No consent (including, without
limitation, from stock holders or creditors of the Company) is required for the
Company to enter into and perform its obligations hereunder.
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(i) The Company shall at all times maintain
the liens and Security Interest provided for hereunder as valid and perfected
first priority liens and security interests in the Collateral in favor of the
Secured Party until this Agreement and the Security Interest hereunder shall
terminate pursuant to Section 11. The Company hereby agrees to defend
the same against any and all persons. The Company shall safeguard and
protect all Collateral for the account of the Secured Party. At the
request of the Secured Party, the Company will sign and deliver to the Secured
Party at any time or from time to time one or more financing statements pursuant
to the UCC (or any other applicable statute) in form reasonably satisfactory to
the Secured Party and will pay the cost of filing the same in all public offices
wherever filing is, or is deemed by the Secured Party to be, necessary or
desirable to effect the rights and obligations provided for herein. Without
limiting the generality of the foregoing, the Company shall pay all fees, taxes
and other amounts necessary to maintain the Collateral and the Security Interest
hereunder, and the Company shall obtain and furnish to the Secured Party from
time to time, upon demand, such releases and/or subordinations of claims and
liens which may be required to maintain the priority of the Security Interest
hereunder.
(j) The Company will not transfer, pledge,
hypothecate, encumber, license (except for non-exclusive licenses granted by the
Company in the ordinary course of business), sell or otherwise dispose of any of
the Collateral without the prior written consent of the Secured
Party.
(k) The Company shall keep and preserve its
Equipment, Inventory and other tangible Collateral in good condition, repair and
order and shall not operate or locate any such Collateral (or cause to be
operated or located) in any area excluded from insurance
coverage.
(l) The Company shall, within ten (10) days
of obtaining knowledge thereof, advise the Secured Party promptly, in sufficient
detail, of any substantial change in the Collateral, and of the occurrence of
any event which would have a material adverse effect on the value of the
Collateral or on the Secured Party’s security interest
therein.
(m) The Company shall promptly execute and
deliver to the Secured Party such further deeds, mortgages, assignments,
security agreements, financing statements or other instruments, documents,
certificates and assurances and take such further action as the Secured Party
may from time to time request and may in its sole discretion deem necessary to
perfect, protect or enforce its security interest in the Collateral including,
without limitation, the execution and delivery of a separate security agreement
with respect to the Company’s intellectual property (“Intellectual
Property Security Agreement”) in which the Secured Party has been
granted a security interest hereunder, substantially in a form acceptable to the
Secured Party, which Intellectual Property Security Agreement, other than as
stated therein, shall be subject to all of the terms and conditions
hereof.
(n) The Company shall permit the Secured
Party and its representatives and agents to inspect the Collateral at any time,
and to make copies of records pertaining to the Collateral as may be requested
by the Secured Party from time to time.
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(o) The Company will take all steps
reasonably necessary to diligently pursue and seek to preserve, enforce and
collect any rights, claims, causes of action and accounts receivable in respect
of the Collateral.
(p) The Company shall promptly notify the
Secured Party in sufficient detail upon becoming aware of any attachment,
garnishment, execution or other legal process levied against any Collateral and
of any other information received by the Company that may materially affect the
value of the Collateral, the Security Interest or the rights and remedies of the
Secured Party hereunder.
(q) All information heretofore, herein or
hereafter supplied to the Secured Party by or on behalf of the Company with
respect to the Collateral is accurate and complete in all material respects as
of the date furnished.
(r) Schedule
A attached hereto contains
a list of all of the subsidiaries of Company.
4. Defaults. The following events shall
be “Events of
Default”:
(a) The occurrence of an Event of Default
(as defined in the Notes) under the Notes;
(b) Any representation or warranty of the
Company in this Agreement or in the Intellectual Property Security Agreement
shall prove to have been incorrect in any material respect when
made;
(c) The failure by the Company to observe or
perform any of its obligations hereunder or in the Intellectual Property
Security Agreement for ten (10) days after receipt by the Company of notice of
such failure from the Secured Party; and
5. Duty To Hold
In Trust. Upon
the occurrence of any Event of Default and at any time thereafter, the Company
shall, upon receipt by it of any revenue, income or other sums subject to the
Security Interest, whether payable pursuant to the Notes or otherwise, or of any
check, draft, note, trade acceptance or other instrument evidencing an
obligation to pay any such sum, hold the same in trust for the Secured Party and
shall forthwith endorse and transfer any such sums or instruments, or both, to
the Secured Party for application to the satisfaction of the
Obligations.
6. Rights and
Remedies Upon Default. Upon occurrence of any
Event of Default and at any time thereafter, the Secured Party shall have the
right to exercise all of the remedies conferred hereunder and under the Notes,
and the Secured Party shall have all the rights and remedies of a secured party
under the UCC and/or any other applicable law (including the Uniform Commercial
Code of any jurisdiction in which any Collateral is then
located). Without limitation, the Secured Party shall have the
following rights and powers:
(a) The Secured Party shall have the right
to take possession of the Collateral and, for that purpose, enter, with the aid
and assistance of any person, any premises where the Collateral, or any part
thereof, is or may be placed and remove the same, and the Company shall assemble
the Collateral and make it available to the Secured Party at places which the
Secured Party shall reasonably select, whether at the Company’s premises or
elsewhere, and make available to the Secured Party, without rent, all of the
Company’s respective premises and facilities for the purpose of the Secured
Party taking possession of, removing or putting the Collateral in saleable or
disposable form.
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(b) The Secured Party shall have the right
to operate the business of the Company using the Collateral and shall have the
right to assign, sell, lease or otherwise dispose of and deliver all or any part
of the Collateral, at public or private sale or otherwise, either with or
without special conditions or stipulations, for cash or on credit or for future
delivery, in such parcel or parcels and at such time or times and at such place
or places, and upon such terms and conditions as the Secured Party may deem
commercially reasonable, all without (except as shall be required by applicable
statute and cannot be waived) advertisement or demand upon or notice to the
Company or right of redemption of the Company, which are hereby expressly
waived. Upon each such sale, lease, assignment or other transfer of
Collateral, the Secured Party may, unless prohibited by applicable law which
cannot be waived, purchase all or any part of the Collateral being sold, free
from and discharged of all trusts, claims, right of redemption and equities of
the Company, which are hereby waived and released.
7. Applications
of Proceeds. The
proceeds of any such sale, lease or other disposition of the Collateral
hereunder shall be applied first, to the expenses of retaking, holding, storing,
processing and preparing for sale, selling, and the like (including, without
limitation, any taxes, fees and other costs incurred in connection therewith) of
the Collateral, to the reasonable attorneys’ fees and expenses incurred by the
Secured Party in enforcing its rights hereunder and in connection with
collecting, storing and disposing of the Collateral, and then to satisfaction of
the Obligations, and to the payment of any other amounts required by applicable
law, after which the Secured Party shall pay to the Company any surplus
proceeds. If, upon the sale, license or other disposition of the
Collateral, the proceeds thereof are insufficient to pay all amounts to which
the Secured Party is legally entitled, the Company will be liable for the
deficiency, together with interest thereon, at the rate of 15% per annum (the
“Default
Rate”), and the reasonable
fees of any attorneys employed by the Secured Party to collect such
deficiency. To the extent permitted by applicable law, the Company
waives all claims, damages and demands against the Secured Party arising out of
the repossession, removal, retention or sale of the Collateral, unless due to
the gross negligence or willful misconduct of the Secured
Party.
8. Costs and
Expenses. The
Company agrees to pay all out-of-pocket fees, costs and expenses incurred in
connection with any filing required hereunder, including without limitation, any
financing statements, continuation statements, partial releases and/or
termination statements related thereto or any expenses of any searches
reasonably required by the Secured Party. The Company shall also pay
all other claims and charges which in the reasonable opinion of the Secured
Party might prejudice, imperil or otherwise affect the Collateral or the
Security Interest therein. The Company will also, upon demand, pay to
the Secured Party the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts and agents, which
the Secured Party may incur in connection with (i) the enforcement of this Agreement,
(ii) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the Collateral, or
(iii) the exercise or enforcement of any of
the rights of the Secured Party under the Notes. Until so paid, any
fees payable hereunder shall be added to the principal amount of the Notes and
shall bear interest at the Default Rate.
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9. Responsibility
for Collateral. The Company assumes all
liabilities and responsibility in connection with all Collateral, and the
obligations of the Company hereunder or under the Notes shall in no way be
affected or diminished by reason of the loss, destruction, damage or theft of
any of the Collateral or its unavailability for any reason.
10. Security
Interest Absolute. All rights of the Secured
Party and all Obligations of the Company hereunder, shall be absolute and
unconditional, irrespective of: (a) any lack of validity or enforceability
of this Agreement,
and the Notes, or any
agreement entered into in connection with the foregoing, or any portion hereof
or thereof; (b) any change in the time, manner or place
of payment or performance of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any departure from the Notes
or any other agreement
entered into in connection with the foregoing; (c) any exchange, release or nonperfection
of any of the Collateral, or any release or amendment or waiver of or consent to
departure from any other collateral for, or any guaranty, or any other security,
for all or any of the Obligations; (d) any action by the Secured Party to
obtain, adjust, settle and cancel in its sole discretion any insurance claims or
matters made or arising in connection with the Collateral; or (e) any other circumstance which might
otherwise constitute any legal or equitable defense available to the Company, or
a discharge of all or any part of the Security Interest granted
hereby. Until the Obligations shall have been paid and performed in
full, the rights of the Secured Party shall continue even if the Obligations are
barred for any reason, including, without limitation, the running of the statute
of limitations or bankruptcy. The Company expressly waives
presentment, protest, notice of protest, demand, notice of nonpayment and demand
for performance. In the event that at any time any transfer of any
Collateral or any payment received by the Secured Party hereunder shall be
deemed by final order of a court of competent jurisdiction to have been a
voidable preference or fraudulent conveyance under the bankruptcy or insolvency
laws of the United States, or shall be deemed to be otherwise due to any party
other than the Secured Party, then, in any such event, the Company’s obligations
hereunder shall survive cancellation of this Agreement, and shall not be
discharged or satisfied by any prior payment thereof and/or cancellation of this
Agreement, but shall remain a valid and binding obligation enforceable in
accordance with the terms and provisions hereof. The Company waives
all right to require the Secured Party to proceed against any other person or to
apply any Collateral which the Secured Party may hold at any time, or to marshal
assets, or to pursue any other remedy. The Company waives any defense
arising by reason of the application of the statute of limitations to any
obligation secured hereby.
11. Term of
Agreement. This
Agreement and the Security Interest shall terminate on the date on which all
payments under the Notes have been made in full and all other Obligations have
been paid or discharged. Upon such termination, the Secured Party, at
the request and at the expense of the Company, will join in executing any
termination statement with respect to any financing statement executed and filed
pursuant to this Agreement.
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12. Power of
Attorney; Further Assurances.
(a) The Company authorizes the Secured
Party, and does hereby make, constitute and appoint it, and its respective
officers, agents, successors or assigns with full power of substitution, as the
Company’s true and lawful attorney-in-fact, with power, in its own name or in
the name of the Company, to, after the occurrence and during the continuance of
an Event of Default, (i) endorse any notes, checks, drafts, money
orders, or other instruments of payment (including payments payable under or in
respect of any policy of insurance) in respect of the Collateral that may come
into possession of the Secured Party; (ii) to sign and endorse any UCC financing
statement or any invoice, freight or express xxxx, xxxx of lading, storage or
warehouse receipts, drafts against debtors, assignments, verifications and
notices in connection with accounts, and other documents relating to the
Collateral; (iii) to pay or discharge taxes, liens,
security interests or other encumbrances at any time levied or placed on or
threatened against the Collateral; (iv) to demand, collect, receipt for,
compromise, settle and xxx for monies due in respect of the Collateral; and
(v) generally, to do, at the option of the
Secured Party, and at the Company’s expense, at any time, or from time to time,
all acts and things which the Secured Party deems necessary to protect, preserve
and realize upon the Collateral and the Security Interest granted therein in
order to effect the intent of this Agreement, and the Notes, all as fully and effectually
as the Company might or could do; and the Company hereby ratifies all that said
attorney shall lawfully do or cause to be done by virtue hereof. This
power of attorney is coupled with an interest and shall be irrevocable for the
term of this Agreement and thereafter as long as any of the Obligations shall be
outstanding.
(b) On a continuing basis, the Company will
make, execute, acknowledge, deliver, file and record, as the case may be, in the
proper filing and recording places in any jurisdiction, including, without
limitation, the jurisdictions indicated on Schedule
B, attached hereto, all
such instruments, and take all such action as may reasonably be deemed necessary
or advisable, or as reasonably requested by the Secured Party, to perfect the
Security Interest granted hereunder and otherwise to carry out the intent and
purposes of this Agreement, or for assuring and confirming to the Secured Party
the grant or perfection of a security interest in all the
Collateral.
(c) The Company hereby irrevocably appoints
the Secured Party as the Company’s attorney-in-fact, with full authority in the
place and stead of the Company and in the name of the Company, from time to time
in the Secured Party’s discretion, to take any action and to execute any
instrument which the Secured Party may deem necessary or advisable to accomplish
the purposes of this Agreement, including the filing, in its sole discretion, of
one or more financing or continuation statements and amendments thereto,
relative to any of the Collateral without the signature of the Company where
permitted by law.
13. Notices. All notices, requests,
demands and other communications hereunder shall be in writing, with copies to
all the other parties hereto, and shall be deemed to have been duly given when
(i) if delivered by hand, upon receipt,
(ii) if sent by facsimile, upon receipt of
proof of sending thereof, (iii) if sent by nationally recognized
overnight delivery service (receipt requested), the next business day or
(iv) if mailed by first-class registered or
certified mail, return receipt requested, postage prepaid, four days after
posting in the U.S. mails, in each case if delivered to the following
addresses:
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If
to the Company:
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Univec,
Inc.
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0000 Xxxxxx Xxxx Xxxxx, Xxxxx
000
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Xxxxxx Xxxxx, XX
00000
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Attention: Chief
Executive Officer
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Telephone: (000)
000-0000
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Facsimile: (000)
000-0000
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Physician and Pharmaceutical
Services, Inc.
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0000 Xxxxxx Xxxx Xxxxx, Xxxxx
000
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Xxxxxx Xxxxx, XX
00000
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Attention: Chief
Executive Officer
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Telephone: (000)
000-0000
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Facsimile: (000)
000-0000
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With
copies to:
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Xxxxx
X. Xxxxxx, Esq.
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Xxxxxx Law
Group
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0000 Xxxxxxxxxxx Xxxxxx, XX, Xxxxx
000
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Xxxxxxxxxx, XX
00000
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Telephone: (000)
000-0000
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Facsimile: (000)
000-0000
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If to the Secured
Party:
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AJW
Partners, LLC
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AJW
Partners II, LLC
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AJW
Master Fund, Ltd.
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AJW
Master Fund II, Ltd.
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New
Millennium Capital Partners III, LLC
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0000
Xxxxxxxx Xxxxxxxxx
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Xxxxx
000
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Xxxxxx,
Xxx Xxxx 00000
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Attention: Xxxxx
Xxxxxxxx
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Facsimile: 000-000-0000
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With copies
to:
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Xxxx
Xxxxxxxxx
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0000 Xxxxxxxx Xxxx Xxxxx
000
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Xxxxxx, XX
00000
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Facsimile: 00-000-0000
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14. Other
Security. To the
extent that the Obligations are now or hereafter secured by property other than
the Collateral or by the guarantee, endorsement or property of any other person,
firm, corporation or other entity, then the Secured Party shall have the right,
in its sole discretion, to pursue, relinquish, subordinate, modify or take any
other action with respect thereto, without in any way modifying or affecting any
of the Secured Party’s rights and remedies hereunder.
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15. Miscellaneous.
(a) No course of dealing between the Company
and the Secured Party, nor any failure to exercise, nor any delay in exercising,
on the part of the Secured Party, any right, power or privilege hereunder or
under the Notes shall operate as a waiver thereof; nor shall
any
(b) single or partial exercise of any right,
power or privilege hereunder or thereunder preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege.
(c) All of the rights and remedies of the
Secured Party with respect to the Collateral, whether established hereby or by
the Notes or by any other agreements, instruments or documents or by law shall
be cumulative and may be exercised singly or concurrently.
(d) This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and is
intended to supersede all prior negotiations, understandings and agreements with
respect thereto. Except as specifically set forth in this Agreement,
no provision of this Agreement may be modified or amended except by a written
agreement specifically referring to this Agreement and signed by the parties
hereto.
(e) In the event that any provision of this
Agreement is held to be invalid, prohibited or unenforceable in any jurisdiction
for any reason, unless such provision is narrowed by judicial construction, this
Agreement shall, as to such jurisdiction, be construed as if such invalid,
prohibited or unenforceable provision had been more narrowly drawn so as not to
be invalid, prohibited or unenforceable. If, notwithstanding the
foregoing, any provision of this Agreement is held to be invalid, prohibited or
unenforceable in any jurisdiction, such provision, as to such jurisdiction,
shall be ineffective to the extent of such invalidity, prohibition or
unenforceability without invalidating the remaining portion of such provision or
the other provisions of this Agreement and without affecting the validity or
enforceability of such provision or the other provisions of this Agreement in
any other jurisdiction.
(f) No waiver of any breach or default or
any right under this Agreement shall be considered valid unless in writing and
signed by the party giving such waiver, and no such waiver shall be deemed a
waiver of any subsequent breach or default or right, whether of the same or
similar nature or otherwise.
(g) This Agreement shall be binding upon and
inure to the benefit of each party hereto and its successors and
assigns.
(h) Each party shall take such further
action and execute and deliver such further documents as may be necessary or
appropriate in order to carry out the provisions and purposes of this
Agreement.
11
(i) This Agreement shall be construed in
accordance with the laws of the State of New York, except to the extent the
validity, perfection or enforcement of a security interest hereunder in respect
of any particular Collateral which are governed by a jurisdiction other than the
State of New York in which case such law shall govern. Each of the
parties hereto irrevocably submit to the exclusive jurisdiction of any New York
State or United States Federal court sitting in Manhattan county over any action
or proceeding arising out of or relating to this Agreement, and the parties
hereto hereby irrevocably agree that all claims in respect of such action or
proceeding may be heard and determined in such New York State or Federal
court. The parties hereto agree that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. The parties hereto further waive any objection to venue in the
State of New York and any objection to an action or proceeding in the State of
New York on the basis of forum non conveniens.
(j) EACH PARTY HERETO HEREBY AGREES TO WAIVE
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL ENCOMPASSING OF ANY DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO THE SUBJECT MATER OF THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT
THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH PARTY HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO
THIS AGREEMENT AND THAT EACH PARTY WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR
RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS AND REPRESENTS THAT IT HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT SUCH PARTY HAS KNOWINGLY
AND VOLUNTARILY WAIVES ITS RIGHTS TO A JURY TRIAL FOLLOWING SUCH
CONSULTATION. THIS WAIVER IS IRREVOCABLE, MEANING THAT,
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS AND SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE
EVENT OF A LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
(k) This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and the same
Agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK]
12
IN WITNESS WHEREOF, the parties hereto
have caused this to be duly executed on the day and year first above
written.
|
COMPANY
|
|
|
UNIVEC,
INC.
|
|
|
By:
|
/s/ Xxxxx
Xxxxxx
|
|
Xxxxx
Xxxxxx
|
|
|
Chief Executive
Officer
|
|
|
PHYSICIAN AND PHARMACEUTICAL
SERVICES, INC.
|
|
|
By:
|
/s/ Xxxxx
Xxxxxx
|
|
Xxxxx
Xxxxxx
|
|
|
Chief Executive
Officer
|
|
|
SECURED
PARTY:
|
|
|
AJW
PARTNERS, LLC
|
|
|
By:
|
SMS
Group, LLC
|
|
By:
|
/s/ Xxxxx X. Xxxxxxxx
|
|
Xxxxx
X. Xxxxxxxx
|
|
|
Manager
|
|
|
AJW
PARTNERS II, LLC
|
|
|
By:
|
SMS
Group, LLC
|
|
By:
|
/s/ Xxxxx X. Xxxxxxxx
|
|
Xxxxx
X. Xxxxxxxx
|
|
|
Manager
|
|
|
AJW
MASTER FUND, LTD.
|
|
|
By:
|
First
Street Manager II, LLC
|
|
By:
|
/s/ Xxxxx X. Xxxxxxxx
|
|
Xxxxx
X. Xxxxxxxx
|
|
|
Manager
|
|
|
AJW
MASTER FUND II, LTD.
|
|
|
By:
|
First
Street Manager II, LLC
|
|
By:
|
/s/ Xxxxx X. Xxxxxxxx
|
|
Xxxxx
X. Xxxxxxxx
|
|
|
Manager
|
|
|
NEW
MILLENNIUM CAPITAL PARTNERS III, LLC
|
|
|
By:
|
First
Street Manager II, LLC
|
|
By:
|
/s/ Xxxxx X. Xxxxxxxx
|
|
Xxxxx
X. Xxxxxxxx
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|
|
Manager
|
|
2
Schedules
to Security Agreement
Schedule
A
Principal
Place of Business
000
Xxxxxxxxxx Xxxx
Xxxxxxxxxxxxx
, XX 00000
Telephone 000-000-0000
Fax 000-000-0000
Location
Where Collateral Located
000
Xxxxxxxxxx Xxxx
Xxxxxxxxxxxxx,
XX 00000
Telephone 000-000-0000
Fax
000-000-0000
3
Schedules
to Security Agreement
Schedule
B
Jurisdictions:
Pennsylvania
4
