Exhibit 10.13
SECURITY AGREEMENT
This Security Agreement (this "AGREEMENT") is made as of April 14, 2006, by
ImaRx Therapeutics, Inc., a Delaware corporation (the "COMPANY"), in favor of
Abbott Laboratories, an Illinois corporation ("HOLDER").
RECITAL
Holder and the Company have executed a Secured Promissory Note (a "NOTE")
in connection with the closing of the transactions set forth in that certain
Asset Purchase Agreement dated as of April 10, 2006, between the Company and
Holder (the "ASSET PURCHASE AGREEMENT"). Pursuant to the terms of the Asset
Purchase Agreement, the Company is required to execute and deliver this
Agreement for the purpose of granting Holder a security interest in certain of
the Company's assets.
AGREEMENT
NOW, THEREFORE, in consideration of the representations, warranties and
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows.
1. Capitalized Terms. Capitalized terms not defined herein shall have the
meanings given such terms in the Note.
2. Grant of Security Interest. To secure the complete and timely
satisfaction of all Obligations, the Company hereby grants to Holder a
continuing, first priority security interest (with power of sale, to the extent
permitted by law or such other security interests as may exist as of the date of
this Agreement, upon occurrence of an Event of Default), in all of the Company's
right, title and interest in and to all of the collateral set forth on attached
Exhibit A (the "COLLATERAL"). The Company represents that Holder will have a
continuing, first priority security interest in the Collateral, subject to
Holder's commercially reasonable steps to protect its interest. The parties
further agree that the Company may not sell any Collateral (other than sales of
the Inventory in the ordinary course of the Company's business) until the
Obligations are paid in full.
3. Perfection of Security Interests. At any time and from time to time, the
Company will execute, file, and record any notice, financing statement, or other
instrument, reasonably necessary to create, continue, or perfect the security
interest granted by this Agreement or to enable Holder to exercise or enforce
its rights under this Agreement.
4. Term. The term of this Agreement will extend until all Obligations under
the Note have been indefeasibly paid in full, as reasonably determined by the
parties, at which time the Company and any of its duly appointed officers is
hereby authorized to file any termination statement under the Uniform Commercial
Code in effect in any jurisdiction to terminate the financing statements that
evidence the security interest in the Collateral created by this Agreement and
the Note.
5. Rights and Remedies Upon Default. Beginning on the date on which any
Event of Default shall have occurred, and while such Event of Default is
continuing:
(a) Holder may exercise, in addition to all other rights and remedies
granted to it under this Agreement, all rights and remedies of a secured party
under the Uniform Commercial Code.
(b) 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 Agreement or any Collateral.
(c) The Company shall, at the request of Holder, assemble the
Collateral at such place or places as may be reasonably designated by Holder.
(d) Holder may, in its sole discretion, in its name or in the name of
the Company or otherwise, demand, sue for, collect or receive any money or
property at any time payable or receivable on account of or in exchange for any
of the Collateral, but shall be under no obligation to do so.
(e) Holder may, upon ten (10) days' prior written notice to the
Company of the time and place (which notice the Company hereby agrees is
commercially reasonable notification for purposes hereof), with respect to the
Collateral or any part thereof which shall then be or shall thereafter come into
the possession, custody or control of Holder, sell, lease, assign or otherwise
dispose of all or any part of such Collateral, at such place or places as Holder
deems best, and for cash or for credit or for future delivery (without thereby
assuming any credit risk), at public or private sale, without demand of
performance or notice of intention to effect any such disposition or of the time
or place thereof (except such notice as is required above or by applicable
statute and cannot be waived), and Holder or anyone else may be the purchaser,
lessee, assignee or recipient of any or all of the Collateral so disposed of at
any public sale (or, to the extent permitted by law, at any private sale) and
thereafter hold the same absolutely, free from any claim or right of whatsoever
kind, including any right or equity of redemption (statutory or otherwise), of
the Company, any such demand, notice and right or equity being hereby expressly
waived and released. Holder may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale may be made
at any time or place to which the sale may be so adjourned.
6. Release of Security Interest. Upon the indefeasible payment in full of
the Obligations, Holder will execute and deliver to the Company all deeds,
assignments and other instruments, and will take such other actions, as may be
necessary or proper to re-vest in the Company full title to the Collateral,
subject to any disposition which may have been made by Holder pursuant to this
Agreement.
7. Certain Restrictions. The Company agrees that until the Obligations have
been indefeasibly paid in full, the Company will not sell or assign its interest
in, or grant any license under, other than in the ordinary course of business in
consultation with Holder, the Collateral, or enter into any other agreement with
respect to the Collateral that is inconsistent with the
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Company's obligations under this Agreement, without the prior written consent of
Holder; provided, however, that the Company may assign the Collateral to an
Affiliate if the Company fully guarantees such Affiliate's performance of all of
the Company's obligations hereunder. The Company further agrees that it will not
take any action, or permit any action to be taken by others subject to its
control, including licensees, or fail to take any action (solely with respect to
any Collateral that are registered patents or registered trademarks), which
would affect the validity or enforcement of the rights transferred to Holder
under this Agreement. Further, the Company covenants and agrees that, until the
Obligations hereunder have been indefeasibly paid in full, the Company will
preserve and maintain the Collateral in good working condition and will protect
the Collateral against spoilage, deterioration and any other wasting.
8. Expenses. All expenses incurred in connection with the performance by
the Company and Holder of any of the agreements set forth in this Agreement will
be borne by the Company. All fees, costs and expenses, of whatever kind or
nature, including reasonable attorneys' and paralegals' fees and legal expenses,
incurred by Holder in connection with the filing or recording of any documents
(including all taxes in connection therewith) in public offices, the payment or
discharge of any taxes, counsel fees, maintenance fees, encumbrances or
otherwise in protecting, maintaining or preserving the Collateral will be borne
by and paid by the Company.
9. Severability. The provisions of this Agreement are severable, and if any
clause or provision is held invalid and unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability will affect only such
clause or provision, or part of such clause or provision, in such jurisdiction,
and will not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this Agreement in any
jurisdiction.
10. Modification. This Agreement cannot be altered, amended or modified in
any way, except as specifically provided in writing and signed by the Company
and Holder.
11. Binding Effect; Benefits. This Agreement will be binding upon the
Company and its successors and permitted assigns, and will inure to the benefit
of Holder, its successors, nominees and assigns.
12. Governing Law. This Agreement shall be governed in all respects by the
internal laws of the State of Delaware, excluding that body of law relating to
conflict of laws and choice of law.
13. Headings. Paragraph headings used in this Agreement are for convenience
only and will not modify the provisions that they precede.
[Signature pages follow.]
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IN WITNESS WHEREOF, the undersigned has caused this Security Agreement to
be duly executed by its officer thereunto duly authorized as of the first date
written above.
COMPANY:
IMARX THERAPEUTICS, INC.
By: /s/ Evan C. Unger
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Name: Evan C. Unger
Title: President and Chief Executive
Officer
HOLDER:
ABBOTT LABORATORIES
By: /s/ Sean E. Murphy
------------------------------------
Name: Sean E. Murphy
Its: Vice President, Global
Licensing/New Business Development
EXHIBIT A
COLLATERAL
The Collateral consists of (i) the Purchased Assets (as defined in the
Asset Purchase Agreement) transferred to the Company by Abbott Laboratories, an
Illinois corporation ("ABBOTT"), pursuant to that certain Asset Purchase
Agreement (the "ASSET PURCHASE AGREEMENT") dated as of April 10, 2006, between
the Company and Abbott, (ii) any written data or research related to the
Purchased Assets or developments and improvements in the intellectual property
included in the Purchased Assets created by the Company subsequent to the
closing of the sale of such Purchased Assets to the Company, (iii) any and all
proceeds from the sale or transfer of the Purchased Assets other than Inventory,
(iv) those proceeds from the sale or transfer of the Inventory that are to be
held in escrow, pursuant to the terms of that certain Escrow Agreement, by and
between the Company and Abbott, dated as of April 14, 2006 (the "Escrow
Agreement") (together with romanette (iii), the "PROCEEDS") and (v) any other
funds deposited by ImaRx into the escrow account governed by the Escrow
Agreement pursuant to Section 1.1(a) thereof.