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EXHIBIT 4.9
SECURITY AGREEMENT
1. IDENTIFICATION.
This Security Agreement (the "Agreement"), dated for identification
purposes only June 11, 2001, is entered into by and between Empyrean Bioscience,
Inc., a Delaware corporation ("Debtor" or "Company"), Richard C. Adamany,
Bennett S. Rubin and Uptic Investment Corp. (Richard C. Adamany, Bennett S.
Rubin and Uptic Investment Corp. are referred to herein individually as a
"Shareholder" and collectively "Shareholders") and Laurus Master Fund Ltd. (the
"Lender").
2. RECITALS.
2.1 The Lender has made a loan to Debtor (the "Loan").
2.2 The Loan is evidenced by a certain Secured Convertible Note in the
principal amount of $1,000,000 ("Note") and executed by Debtor as the "Borrower"
thereof, for the benefit of Lender as the "Holder" thereof.
2.3 In order to induce Lender to make the Loan and as security for
Debtor's performance of its obligations under the Subscription Agreement entered
into between Debtor and Lender relating to the Note (the "Subscription
Agreement"), or pursuant to other written instruments and agreements entered
into by the Debtor and Lender, whether before or after the date hereof,
(collectively, the "Obligations"), Shareholders for good and valuable
consideration, receipt of which is acknowledged, have agreed to grant to the
Lender, a security interest in the Collateral (as such term is hereinafter
defined), on the terms and conditions hereinafter set forth. Such Loans are
specifically made with recourse as to Debtor.
DEFINED TERMS. The following defined terms which are defined in the
Uniform Commercial Code in effect in the State of New York on the date hereof
are used herein as so defined: Accounts, Chattel Paper, Documents, Equipment,
General Intangibles, Instruments, Inventory and Proceeds.
3. GRANT OF GENERAL SECURITY INTEREST IN COLLATERAL.
3.1 As security for the Obligations, Shareholders hereby grant the
Lender a security interest in the Collateral.
3.2 "Collateral" shall mean all of the following property of the
Shareholders: the common stock of the Debtor as set forth on Schedule A hereto,
together with medallion signature guaranteed stock powers ("Security Shares").
Such additional Collateral shall include, but not be limited to, all the
Shareholders right, title and interest in and to the Security Shares, together
with the proceeds of any sale, exchange, liquidation or other disposition,
whether voluntary or involuntary, and including but not limited to any
securities, Instruments, and all benefits and entitlements evidenced by or
arising out of the Security Shares and all other securities, Instruments and
other property (whether real or personal, tangible or intangible) issued or
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accepted in substitution for, or in addition to, the foregoing, and all
dividends, interest, cash, instruments, distributions, income, securities and
any other property (whether real or personal, tangible or intangible) at any
time received, receivable or otherwise distributed in respect of, or in exchange
for, the foregoing, whether now owned or hereafter acquired, and any and all
improvements, additions, replacements, substitutions and any and all Proceeds
arising out of or derived from the foregoing.
3.3 The Lender is hereby specifically authorized to transfer any
Collateral into the name of the Lender and to take any and all action deemed
advisable to the Lender to remove any transfer restrictions affecting the
Collateral upon an Event of Default.
4. PERFECTION OF SECURITY INTEREST.
The Collateral shall be delivered to the Lender. The Lender shall have
a perfected security interest in the Collateral.
5. VOTING POWER.
5.1 Prior to any Event of Default (as defined herein), Shareholders
shall be entitled to exercise all voting power pertaining to any of the
Collateral
6. FURTHER ACTION BY DEBTOR; COVENANTS AND WARRANTIES.
6.1 Lender at all times shall have a perfected security interest in the
Collateral which shall be prior to any other unperfected interest therein.
Subject to the security interest described herein, other than the Company's
prior lien on the Security Shares, Shareholders have and will continue to have
full title to the Collateral free from any liens, leases, encumbrances,
judgments or other claims. Lender's security interest in the Collateral
constitutes and will continue to constitute a first, prior and indefeasible
security interest in favor of Lender. Shareholders will do all acts and things,
and will execute and file all instruments (including, but not limited to,
security agreements, financing statements, continuation statements, etc.)
reasonably requested by Lender to establish, maintain and continue the perfected
security interest of Lender in the Collateral, and will promptly on demand, pay
all costs and expenses of filing and recording, including the costs of any
searches deemed necessary by Lender from time to time to establish and determine
the validity and the continuing priority of the security interest of Lender, and
also pay all other claims and charges that in the opinion of Lender might
prejudice, imperil or otherwise affect the Collateral or its security interest
therein.
6.2 Shareholders will not sell, transfer, assign or pledge those items
of Collateral and Debtor and Shareholders will not allow any such items to be
sold, transferred, assigned or pledged, without the prior written consent of
Lender. Although Proceeds of Collateral are covered by this Security Agreement,
this shall not be construed to mean that Lender consents to any sale of the
Collateral.
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6.3 Debtor and Shareholders will, at all reasonable times, allow Lender
or its representatives free and complete access to all of Debtor 's and
Shareholders' records which in any way relate to the Collateral, for such
inspection and examination as Lender deems necessary.
6.4 Debtor and Shareholders, at their sole cost and expense, will
protect and defend this Security Agreement, all of the rights of Lender
hereunder, and the Collateral against the claims and demands of all other
parties.
6.5 Debtor and Shareholders will promptly notify Lender of any levy,
distraint or other seizure by legal process or otherwise of any part of the
Collateral, and of any threatened or filed claims or proceedings that might in
any way affect or impair any of the rights of Lender under this Security
Agreement.
6.6 Lender may, at its option, and without any obligation to do so,
pay, perform and discharge any and all amounts, costs, expenses and liabilities
herein agreed to be paid or performed by Debtor, and all amounts expended by
Lender in so doing shall become part of the Obligations secured hereby, and
shall be immediately due and payable by Debtor and Shareholders to Lender upon
demand and shall bear interest at 18% per annum from the dates of such
expenditures until paid.
6.7 Upon the request of Lender, Debtor will furnish within five (5)
days thereafter to Lender, or to any proposed assignee of this Security
Agreement, a written statement in form satisfactory to Lender, duly
acknowledged, certifying the amount of the principal and interest then owing
under the Obligations, whether any claims, offsets or defenses exist against the
Obligations or against this Security Agreement, or any of the terms and
provisions of any other agreement of Debtor securing the Obligations.
6.8 Shareholders, each as to himself, represents and warrants that he
is the true and lawful exclusive owner of the Collateral, free and clear of any
liens and encumbrances, other than the Company's prior lien on the Security
Shares, and acquired the Security Shares for purposes of calculating the holding
period for purposes of Rule 144 under the Securities Act of 1933 ("Rule 144") on
the dates set forth on Schedule A. Shareholders make the foregoing
representation to the Lender and any transfer agent of the Company's common
stock as if originally made to such transfer agent.
6.9 Shareholders hereby agree not to divest themselves of any right
under the Collateral absent prior written approval of the Lender.
6.10 Debtor and Shareholders will cooperate and provide such
certificate, resolutions, representations, legal opinions and all other matters
necessary to facilitate a transfer or sale of any part of the Collateral
pursuant to Rule 144. Debtor and Shareholders are unaware of any impediment to
the resale of the security by the Lender pursuant to Rule 144. Debtor and
Shareholders will take no action that would impede or limit the Lender's ability
to resell all the Security Shares pursuant to Rule 144. For so long as any
Security Shares are subject to this Security Agreement, the Shareholders will
not sell any security of the Debtor which sale would be aggregated with sales by
the Lender pursuant to Rule 144. Debtor shall issue written instructions to its
transfer agent to comply with the foregoing sentence. Debtor will not permit the
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transfer of any security of the Debtor if such transfer would aggregate for
purposes of Rule 144 with sales of the Security Shares by the Lender or any
sales of the Security Shares. Shareholders represent and warrant that they have
not sold any security of the Debtor during the thirty (30) days prior to the
date of this Agreement.
7. POWER OF ATTORNEY.
Shareholders hereby irrevocably constitute and appoint the Lender as
the true and lawful attorney of Debtor and Shareholders, with full power of
substitution, in the place and stead of Debtor and Shareholders and in the name
of Debtor and Shareholders or otherwise, at any time or times, in the discretion
of the Lender, to take any action and to execute any instrument or document
which the Lender may deem necessary or advisable to accomplish the purposes of
this Agreement which Debtor or Shareholders fail to take or fail to execute
within five (5) business days of the Lender's reasonable request therefor. This
power of attorney is coupled with an interest, is irrevocable and shall not be
affected by any subsequent disability or incapacity of Debtor or Shareholders.
8. PERFORMANCE BY THE LENDER.
If Debtor or Shareholders fail to perform any material covenant,
agreement, duty or obligation of Debtor or Shareholders under this Agreement,
the Lender may, at any time or times in its discretion, take action to effect
performance of such obligation. All reasonable expenses of the Lender incurred
in connection with the foregoing authorization shall be payable by Debtor and
Shareholders as provided in Paragraph 12.1 hereof. No discretionary right,
remedy or power granted to the Lender under any part of this Agreement shall be
deemed to impose any obligation whatsoever on the Lender with respect thereto,
such rights, remedies and powers being solely for the protection of the Lender.
9. EVENT OF DEFAULT.
An event of default ("Event of Default") shall be deemed to have
occurred hereunder upon the occurrence of any event of default as defined in the
Note or Subscription Agreement. Upon and after any Event of Default, after the
applicable cure period, if any, any or all of the Obligations shall become
immediately due and payable at the option of the Lender, for the benefit of the
Lender, and the Lender may dispose of Collateral as provided below. A default by
Debtor or Shareholders of any of their obligations pursuant to this Agreement
including but not limited to the obligations set forth in Section 6 of this
Agreement, or a misrepresentation by Debtor or Shareholders of a material fact
stated herein, shall be deemed an Event of Default hereunder and an event of
default as defined in the Obligations.
10. DISPOSITION OF COLLATERAL.
10.1 Upon and after any Event of Default which is then continuing,
(a) The Lender may exercise its rights with respect to each
and every component of the Collateral, without regard to the existence of any
other security or source of payment for the Obligations or any other component
of the Collateral. In addition to other rights and remedies provided for herein
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or otherwise available to it, the Lender shall have all of the rights and
remedies of a lender on default under the Uniform Commercial Code then in effect
in the State of New York.
(b) If any notice to Shareholders of the sale or other disposition
of Collateral is required by then applicable law, five (5) days' prior notice
(or, if longer, the shortest period of time permitted by then applicable law) to
Shareholders of the time and place of any public sale of Collateral or of the
time after which any private sale or any other intended disposition is to be
made, shall constitute reasonable notification.
(c) The Lender is authorized, at any such sale, if the Lender
deems it advisable to do so, in order to comply with any applicable securities
laws, to restrict the prospective bidders or purchasers to persons who will
represent and agree, among other things, that they are purchasing the Collateral
for their own account for investment, and not with a view to the distribution or
resale thereof, or otherwise to restrict such sale in such other manner as the
Lender deems advisable to ensure such compliance. Sales made subject to such
restrictions shall be deemed to have been made in a commercially reasonable
manner.
(d) All cash proceeds received by the Lender in respect of any
sale, collection or other enforcement or disposition of Collateral, shall be
applied (after deduction of any amounts payable to the Lender pursuant to
Paragraph 12.1 hereof) against the Obligations. Upon payment in full of all
Obligations, Shareholders shall be entitled to the return of all Collateral,
including cash, which has not been used or applied toward the payment of
Obligations or used or applied to any and all costs or expenses of the Lender
incurred in connection with the liquidation of the Collateral (unless another
person is legally entitled thereto). Any assignment of Collateral by the Lender
to Shareholders shall be without representation or warranty of any nature
whatsoever and wholly without recourse. The Lender may purchase the Collateral
and pay for such purchase by offsetting any sums owed to such Lender by Debtor
or Shareholders arising under the Obligations or any other source.
(e) No exercise by the Lender of any right hereby given it, no
dealing by the Lender with Debtor, Shareholders or any other person, and no
change, impairment or suspension of any right or remedy of the Lender shall in
any way affect any of the obligations of Debtor or Shareholders hereunder or any
Collateral furnished by Shareholders or give Debtor or Shareholders any recourse
against the Lender.
10.2 The Security Shares shall be released to the Shareholders upon the
sooner of (i) complete satisfaction of the Obligations, or (ii) the compliance
by the Debtor of its registration obligations set forth in Section 10.1(iv) of
the Subscription Agreement. Notwithstanding anything contained in this Security
Agreement, or in the Subscription Agreement to the contrary, the Security Shares
that have not been released pursuant to this Security Agreement shall be
released and returned promptly to the Shareholders upon the effectiveness of the
SB-2 registration statement required to be filed by the Company pursuant to
Section 10.1(iv) of the Subscription Agreement.
10.3 The Shareholders collectively may substitute with the Lender prior
to the occurrence of an Event of Default a sum of money equal to the greater of
(i) the Mandatory Redemption Payment as defined in Section 9.2 of the
Subscription Agreement, or (ii) all sums due, payable or accruing on the
Obligations through the Maturity Date of the Note as substitute Collateral and
receive the Security Shares in lieu thereof.
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Said sum of money will be held as Collateral pursuant to this Security
Agreement, and shall be deposited in an interest bearing account for the benefit
of the Shareholders provided each of the Shareholders provide to the Lender a
taxpayer identification number and other documents reasonably requested by
Lender.
11. WAIVER OF AUTOMATIC STAY. The Debtor and Shareholders acknowledge and
agree that should a proceeding under any bankruptcy or insolvency law be
commenced by or against the Debtor or Shareholders, or if any of the Collateral
(as defined in the Security Agreement) should become the subject of any
bankruptcy or insolvency proceeding, then the Lender should be entitled to,
among other relief to which the Lender may be entitled under the Note, Security
Agreement, Subscription Agreement and any other agreement to which the Debtor,
Shareholders, or Lender are parties, (collectively "Loan Documents") and/or
applicable law, an order from the court granting immediate relief from the
automatic stay pursuant to 11 U.S.C. Section 362 to permit the Lender to
exercise all of its rights and remedies pursuant to the Loan Documents and/or
applicable law. THE DEBTOR AND SHAREHOLDERS EXPRESSLY WAIVE THE BENEFIT OF THE
AUTOMATIC STAY IMPOSED BY 11 U.S.C. SECTION 362. FURTHERMORE, THE DEBTOR AND
SHAREHOLDERS EXPRESSLY ACKNOWLEDGE AND AGREE THAT NEITHER 11 U.S.C. SECTION 362
NOR ANY OTHER SECTION OF THE BANKRUPTCY CODE OR OTHER STATUTE OR RULE
(INCLUDING, WITHOUT LIMITATION, 11 U.S.C. SECTION 105) SHALL STAY, INTERDICT,
CONDITION, REDUCE OR INHIBIT IN ANY WAY THE ABILITY OF THE LENDER TO ENFORCE ANY
OF ITS RIGHTS AND REMEDIES UNDER THE LOAN DOCUMENTS AND/OR APPLICABLE LAW. The
Debtor and Shareholders hereby consent to any motion for relief from stay which
may be filed by the Lender in any bankruptcy or insolvency proceeding initiated
by or against the Debtor and Shareholders, and further agree not to file any
opposition to any motion for relief from stay filed by the Lender. The Debtor
and Shareholders represent, acknowledge and agree that this provision is a
specific and material aspect of this Agreement, and that the Lender would not
agree to the terms of this Agreement if this waiver were not a part of this
Agreement. The Debtor and Shareholders further represent, acknowledge and agree
that this waiver is knowingly, intelligently and voluntarily made, that neither
the Lender nor any person acting on behalf of the Lender has made any
representations to induce this waiver, that the Debtor and Shareholders have
been represented (or has had the opportunity to be represented) in the signing
of this Agreement and in the making of this waiver by independent legal counsel
selected by the Debtor and Shareholders and that the Debtor and Shareholders
have had the opportunity to discuss this waiver with counsel. The Debtor and
Shareholders further agree that any bankruptcy or insolvency proceeding
initiated by the Debtor or Shareholders will only be brought in courts within
the geographic boundaries of New York State.
12. MISCELLANEOUS.
12.1 EXPENSES. Debtor and Shareholders shall severally pay to the
Lender, on demand, the amount of any and all reasonable expenses, including,
without limitation, attorneys' fees, legal expenses and brokers' fees, which the
Lender may incur in connection with (a) sale, collection or other enforcement or
disposition of Collateral; (b) exercise or enforcement of any the rights,
remedies or powers of the Lender hereunder or with respect to any or all of the
Obligations; or (c) failure by Debtor or Shareholders to perform and observe any
agreements of Debtor or Shareholders contained herein which are performed by the
Lender.
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12.2 WAIVERS, AMENDMENT AND REMEDIES. No course of dealing by the
Lender and no failure by the Lender to exercise, or delay by the Lender in
exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, and no single or partial exercise thereof shall preclude any other or
further exercise thereof or the exercise of any other right, remedy or power of
the Lender. No amendment, modification or waiver of any provision of this
Agreement and no consent to any departure by Debtor or Shareholders therefrom,
shall, in any event, be effective unless contained in a writing signed by the
Lender, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. The rights, remedies and
powers of the Lender, not only hereunder, but also under any instruments and
agreements evidencing or securing the Obligations and under applicable law are
cumulative, and may be exercised by the Lender from time to time in such order
as the Lender may elect.
12.3 NOTICES. Any notice or other communications under the provisions
of this Agreement shall be given in writing and delivered to the recipient in
person, by reputable overnight courier or delivery service, by facsimile machine
(receipt conformed) with a copy sent by first class mail on the date of
transmission, or by registered or certified mail, return receipt requested,
directed to its address set forth below (or to any new address of which a party
hereto shall have informed the other by the giving of notice in the manner
provided herein):
To Debtor: Empyrean Bioscience, Inc.
23800 Commerce Park Road, Suite A
Cleveland, Ohio 44122
Fax: (216) 360-7909
And for Informational
Purposes only, a copy to: Joseph G. Tegreene
Benesch, Friedlander, Coplan & Aronoff LLP
2300 BP America Building, 200 Public Square
Cleveland, Ohio 44114
Fax: (216) 363-4588
To Shareholders: c/o Empyrean Bioscience, Inc.
23800 Commerce Park Road, Suite A
Cleveland, Ohio 44122
Fax: (216) 360-7909
To Lender: LAURUS MASTER FUND, LTD.
A Cayman Island corporation
c/o Onshore Corporate Services Ltd.
P.O. Box 1234 G.T.
Queensgate House, South Church Street
Grand Cayman, Cayman Islands
Fax: 345-949-9877
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And for Informational
Purposes Only, copy to: Daniel M. Laifer, Esq.
135 West 50th Street, Suite 1700
New York, New York 10020
Fax: (212) 541-4434
Any party may change its address by written notice in accordance with this
paragraph.
12.4 TERM: BINDING EFFECT. This Agreement shall (a) remain in full
force and effect until payment and satisfaction in full of all of the
Obligations; (b) be binding upon Debtor and Shareholders, and their successors
and assigns; and (c) inure to the benefit of the Lender, for the benefit of the
Lender and their respective heirs, legal representatives, and affiliates.
12.5 CAPTIONS. The captions of Paragraphs, Articles and Sections in
this Agreement have been included for convenience of reference only, and shall
not define or limit the provisions hereof and have no legal or other
significance whatsoever.
12.6 GOVERNING LAW; VENUE; SEVERABILITY. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without regard to principles of conflicts or choice of law, except to the extent
that the perfection of the security interest granted hereby in respect of any
item of Collateral may be governed by the law of another jurisdiction. Any legal
action or proceeding against the Debtor and Shareholders with respect to this
Agreement may be brought in the courts of the State of New York or of the United
States for the Southern District of New York, and, by execution and delivery of
this Agreement, each of the Debtor and Shareholders hereby irrevocably accepts
for itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The Debtor and Shareholders hereby
irrevocably waive any objection which they may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising out of or
in connection with this Agreement brought in the aforesaid courts and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum. If any provision of this Agreement, or the application
thereof to any person or circumstance, is held invalid, such invalidity shall
not affect any other provisions which can be given effect without the invalid
provision or application, and to this end the provisions hereof shall be
severable and the remaining, valid provisions shall remain of full force and
effect.
12.7 COUNTERPARTS/EXECUTION. This Agreement may be executed in any
number of counterparts and by the different signatories hereto on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument. This
Agreement may be executed by facsimile signature and delivered by facsimile
transmission.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed and delivered this
Security Agreement, as of the date first written above.
"DEBTOR"
EMPYREAN BIOSCIENCE, INC.
a Delaware corporation
By:
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Its:
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"SHAREHOLDERS"
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"THE LENDER"
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LAURUS MASTER FUND LTD.
THIS SECURITY AGREEMENT MAY BE EXECUTED BY FACSIMILE SIGNATURE AND DELIVERED BY
CONFIRMED FACSIMILE TRANSMISSION.
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SCHEDULE A TO SECURITY AGREEMENT
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DEPOSITOR DEPOSITED SECURITY STOCK CERTIFICATE ACQUISITION
SHARES NUMBERS DATE *
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Richard C. Adamany 1,625,000 6030 January 31,2001
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Bennett S. Rubin 1,625,000 6033 January 31,2001
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Uptic Investment Corp. 693,750 6038 February 3,2001
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Uptic Investment Corp. 460,000 6072 February 3,2001
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* EACH OF THE DEPOSITED SECURITY SHARES WAS INITIALLY ISSUED ON THE ACQUISITION
DATE AND FULLY PAID FOR AS OF THE ACQUISITION DATE.
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Schedule A to Security Agreement
EMPYREAN BIOSCIENCE, INC.
NAME CERT # # SHARES ACQUISITION DATE
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Richard C. Adamany 6030 1,625,000 January 31, 2001
Bennett S. Rubin 6033 1,625,000 January 31, 2001
Uptic Investments Corp 6038 693,750 February 3, 2001
6072 460,000 February 3, 2001