Exhibit 10.18.6
THIS CHARGE OVER SHARES dated 29th October 2003 is made as a deed
BETWEEN
1. INYX, INC. (incorporated in Nevada, United States of America) of 9th
Floor, 801 Brickell Avenue, Miami, Florida 33131, the "Chargor"
AND
2. LAURUS MASTER FUND, LTD. (incorporated in The Cayman Islands) of c/o
Ironshore Corporate Services Ltd, P.O. Box 1234 G.T., Queensgate House,
South Church Street, Grand Cayman, Cayman Islands ("Laurus", which
expression includes its successors in title and assigns).
NOW THIS DEED WITNESSES as follows:-
1. Interpretation
1.1 Definitions
In this deed:-
"Business Day" means a day (other than a Saturday or a Sunday) on which
banks are open for business in London and New York.
"Charge" means all or any of the Security created, or which may at any
time be created, by or pursuant to this deed.
"Charged Property" means the Original Shares, any Further Shares and
any Derived Assets. It does not include any Stiefel Shares.
"Delegate" means a delegate or sub-delegate appointed pursuant to
clause 11.3.
"Derived Assets" means all Shares, rights or other property of a
capital nature which accrue or are offered, issued or paid at any time
(by way of bonus, rights, redemption, conversion, exchange,
substitution, consolidation, subdivision, preference, warrant, option,
purchase or otherwise) in respect of:-
(A) the Original Shares; or
(B) any Further Shares; or
(C) any Shares, rights or other property previously accruing,
offered, issued or paid as mentioned in this definition.
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"Dividends" means all dividends, interest and other income paid or
payable in respect of the Original Shares, any Further Shares or any
Derived Assets.
"Event of Default" has the meaning given to that expression in Article
IV of the Note.
"Further Shares" means all Shares (other than the Original Shares and
any Shares comprised in any Derived Assets) which the Chargor and
Laurus may at any time agree shall be subject to the Charge. It does
not include any Stiefel Shares.
"LPA" means the Law of Property Act 1925.
"Note" means the Convertible Term Note signed on or about the date of
this document by which each of the Chargor and Inyx Pharma Limited
jointly and severally promise to pay Laurus the sum of US $4,500,000 on
and subject to the terms and conditions therein set out.
"Original Shares" means the Shares listed in schedule 1.
"Proceedings" means any proceeding, suit or action arising out of or in
connection with this deed.
"Rights" means rights, benefits, powers, privileges, authorities,
discretions and remedies (in each case, of any nature whatsoever).
"Secured Liabilities" means
(a) each and every present and future obligation and liability of
the Chargor (whether actual or contingent and whether owed
jointly or severally or in any other capacity whatever and
whether direct or owed by contribution or indemnity or
otherwise howsoever) which is, or is expressed to be, or may
become, due, owing or payable to Laurus upon any banking or
trading account or otherwise, and whether or not Laurus shall
have been an original party to the relevant transaction, under
any Security Document;
(b) all interest, costs, commissions, fees and other charges and
expenses which are, or are expressed to be, or may become due,
owing or payable by the Chargor at any time to Laurus in
respect of any Security Document; and
(c) all legal and other costs, charges and expenses which Laurus
may incur in enforcing or obtaining, or attempting to enforce
or obtain, payment of any obligation, liability or money
referred to in paragraphs (a) and (b) above.
"Security" includes any mortgage, fixed or floating charge,
encumbrance, lien, pledge, hypothecation, assignment by way of
security, or title retention arrangement (other than in respect of
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goods purchased in the ordinary course of trading), and any agreement
or arrangement having substantially the same economic or financial
effect as any of the foregoing (including any "hold back" or "flawed
asset" arrangement).
"Security Documents" means the Note, Related Agreements (as that term
is defined in the Purchase Agreement defined in the Note) and any other
documents pursuant to which the Company may at any time incur liability
to Laurus in respect of any borrowing, financing arrangement or
otherwise.
"Shares" means stocks, shares and other securities of any kind of Inyx
Pharma Limited.
"Stiefel Note" means the 6% convertible promissory note due 6 March
2007, dated 6 March 2003 and made between Inyx Pharma Limited and
Stiefel Laboratories, Inc.
"Stiefel Shares" means:
(a) any shares (not exceeding 20% of the Company's total issued
share capital at any time) issued or that may be issued in the
future by Inyx Pharma Limited or the Chargor under or in
accordance with the Stiefel Note:
(b) any Rights attaching to such Shares; and
(c) any Derived Assets deriving from such Stiefel Shares so long
as the percentage of the Company's total issued share capital
at any time represented by Stiefel Shares does not exceed 20%.
"Tax" includes any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature, and any interest or
penalty in respect thereof.
"Working Hours" means 9.30 a.m. to 5.30 p.m. on a Business Day.
1.2 References and Construction
(A) In this deed, unless otherwise specified:-
(i) references to clauses and schedules are to clauses of
and schedules to this deed;
(ii) headings to clauses are for convenience only and are
to be ignored in construing this deed;
(iii) references to a "person" are to be construed so as to
include any individual, firm, company, government,
state or agency of a state, local or municipal
authority, or any joint venture, association or
partnership (whether or not having separate legal
personality);
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(iv) references to a "company" are to be construed so as
to include any company, corporation or other body
corporate, wherever and however incorporated or
established;
(v) references to any statute or statutory provision are
to be construed as a reference to the same as it may
have been, or may from time to time be, amended,
modified or re-enacted, and include references to all
bye-laws, instruments, orders and regulations for the
time being made thereunder or deriving validity
therefrom; and
(vi) an Event of Default is "continuing" if it has not
been remedied or waived.
(B) Except to the extent that the context otherwise requires, any
reference in this deed to "this deed" or any other deed,
agreement or instrument is a reference to this deed or, as the
case may be, the relevant deed, agreement or instrument as
amended, supplemented, replaced or novated from time to time
and includes a reference to any document which amends,
supplements, replaces, novates or is entered into, made or
given pursuant to or in accordance with any of the terms of
this deed or, as the case may be, the relevant deed, agreement
or instrument.
1.3 Stiefel Note and Stiefel Shares
Notwithstanding any other provision of this Deed, this Deed is entered
into subject to the provisions of the Stiefel Note. Nothing in this
Deed creates, now or the future, any Security or affects in any way the
rights or obligations of Inyx Pharma Limited, the Chargor or Stiefel
Laboratories, Inc. under or concerning any Stiefel Shares or the
Stiefel Note.
2. Covenant to Pay
The Chargor covenants with Laurus to pay and discharge all Secured
Liabilities at the time or times when, and in the currency or
currencies in which, the same are expressed to be payable under the
Note, this deed or, as the case may be, any other document relating to
the Secured Liabilities.
3. Charge
The Chargor, with full title guarantee and as continuing security for
the payment and discharge of all Secured Liabilities, charges all its
Rights, title and interest in and to the Charged Property by way of
first fixed charge in favour of Laurus.
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4. Covenant to Deposit and Further Assurances
4.1 Original Shares and Further Shares
The Chargor shall, immediately after the execution of this deed in the
case of the Original Shares, and within two Business Days of each
occasion on which Laurus and the Chargor agree that any Shares shall
become Further Shares, deposit with Laurus:-
(A) all share certificates, documents of title and other
documentary evidence of ownership in relation to such Shares;
and
(B) transfers of such Shares duly executed by the Chargor or its
nominee with the name of the transferee left blank or, if
Laurus so requires, duly executed by the Chargor or its
nominee in favour of Laurus (or Laurus' nominee) and stamped,
and such other documents as the may require to enable Laurus
(or Laurus' nominee) or, after the occurrence of an Event of
Default that is continuing, any purchaser to be registered as
the owner of, or otherwise to obtain legal title to, such
Shares.
4.2 Derived Assets
The Chargor shall, to the extent possible, deliver or pay to Laurus or
procure the delivery or payment to Laurus of:
(A) all such Derived Assets or the share certificates,
renounceable certificates, letters of allotment, documents of
title and other documentary evidence of ownership in relation
to them; and
(B) transfers of any Shares comprised in such Derived Assets duly
executed by the Chargor or its nominee with the name of the
transferee left blank or, if Laurus so requires following an
Event of Default that is continuing, duly executed by the
Chargor or its nominee in favour of Laurus (or Laurus'
nominee) and stamped, and such other documents as Laurus may
require to enable Laurus (or Laurus' nominee) or, after the
occurrence of an Event of Default that is continuing, any
purchaser to be registered as the owner of, or otherwise to
obtain legal title to, the Shares comprised in such Derived
Assets, within 10 Business Days of their creation.
This clause 4.2 (Derived Assets) does not apply to nor affect
any Stiefel Shares in any way.
4.3 Further Assurances
In addition to and without prejudice to anything else contained in this
deed, the Chargor shall, at the reasonable request of Laurus but at its
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own cost, promptly execute and do all such deeds, instruments,
transfers, renunciations, proxies, notices, documents, assurances, acts
and things in such form as Laurus may from time to time reasonably
require:
(A) for perfecting, preserving or protecting the Charge or the
priority of the Charge; and
(B) for facilitating the realisation of the Charge or the exercise
of any Rights vested in Laurus.
The obligations of the Chargor under this clause 4.3 shall be in
addition to and not in substitution for the covenants for further
assurance deemed to be included in this deed by virtue of the Law of
Property (Miscellaneous Provisions Act) 1994.
5. Representations and Warranties
The Chargor represents and warrants to Laurus that:-
(A) it is the sole legal and beneficial owner of the Charged
Property;
(B) no Security (other than the Charge) exists on, over or with
respect to any of the Charged Property;
(C) it has not sold, transferred, lent, assigned, parted with its
interest in, disposed of, granted any option in respect of or
otherwise dealt with any of its Rights, title and interest in
and to the Charged Property, or agreed to do any of the
foregoing (otherwise than pursuant to this deed);
(D) the Original Shares, any Further Shares and any Shares
comprised in any Derived Assets (excluding the Stiefel Shares)
are fully paid and there are no moneys or liabilities
outstanding in respect of any of the Charged Property;
(E) the Original Shares, any Further Shares and any Shares
comprised in any Derived Assets (excluding the Stiefel Shares)
have been duly authorised and validly issued and are free from
any restrictions on transfer or rights of pre-emption;
(F) the Original Shares, together constitute the entire issued
share capital of Inyx Pharma Limited;
(G) it has the power to enter into, and perform and comply with
its obligations under, this deed, and to create the Charge;
(H) all actions, conditions and things required to be taken,
fulfilled and done (including the obtaining of any necessary
consents) in order to,
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(i) enable it lawfully to enter into, and perform and
comply with its obligations under, this deed,
(ii) ensure that those obligations are valid, legal,
binding and enforceable,
(iii) permit the creation of the Charge and ensure that
(subject to all necessary registrations thereof being
made) the Charge is a valid, legal, binding and
enforceable first fixed charge over the Charged
Property ranking in priority to the interests of any
secured or unsecured creditor of the Chargor, and
(iv) make this deed admissible in evidence in the courts
of England.
have been taken fulfilled and done.
(I) the obligations of the Chargor under this deed and (subject to
all necessary registrations thereof being made) the Charge are
and will be until fully discharged valid, legal, binding and
enforceable and the Charge constitutes a first fixed charge
over the Charged Property ranking in priority to the interests
of any secured or unsecured creditor against the Chargor.
6. Covenants
The Chargor shall:-
(A) not create, attempt to create or permit to subsist any
Security (other than the Charge) on, over or with respect to
any of the Charged Property;
(B) not sell, transfer, lend, assign, part with its interest in,
dispose of, grant any option in respect of or otherwise deal
with any of its Rights, title and interest in and to the
Charged Property, or agree to do any of the foregoing
(otherwise than pursuant to this deed);
(C) not take or omit to take any action which act or omission
could adversely affect or diminish the value of any of the
Charged Property;
(D) ensure that the Original Shares, any Further Shares and any
Shares comprised in any Derived Assets (excluding the Stiefel
Shares) are free from any restriction on transfer or rights of
pre-emption;
(E) take all action within its power to procure, maintain in
effect and comply with all the terms and conditions of all
approvals, authorisations, consents and registrations
necessary or appropriate for anything provided for on its part
in this deed;
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(F) ensure that the Charge will at all times be legally valid and
binding;
(G) without prejudice to clause 5(D), punctually pay all calls,
subscription moneys and other moneys payable on or in respect
of any of the Charged Property and indemnify and keep
indemnified Laurus and its nominees against any costs,
liabilities or expenses which it or they may suffer or incur
as a result of any failure by the Chargor to pay the same;
(H) promptly deliver to Laurus all such information concerning the
Charged Property as Laurus may reasonably request from time to
time;
(I) not take any action or procure the taking of any action to
increase the issued share capital of Inyx Pharma Limited
without the prior consent of Laurus, nor otherwise to take or
omit to take any action which would render any of the
representations and warranties given by the Chargor to Laurus
pursuant to clause 5 incorrect or untrue, provided that this
paragraph shall not apply with respect to any action taken by
the Chargor in pursuance of its obligations under the Stiefel
Note or any related agreements with Stiefel.
7. Chargor's Rights before Enforcement
Until the Charge shall become enforceable, the Chargor shall be
entitled to:-
(A) receive and retain free from the Charge any Dividends paid to
it; and
(B) exercise and control the exercise of all voting and other
Rights relating to the Charged Property provided that:
(i) the entitlement of the Chargor under this clause 7(B)
may at any time be terminated upon and to the extent
of any notice by Laurus to the Chargor evidencing
Laurus' intention thenceforth to direct the exercise
of such Rights for the purpose of preserving the
value of the Charge; and
(ii) the exercise or failure to exercise any voting and
other Rights by the Chargor has no adverse effect on
the value of the Charged Property or in any way
prejudices the interests of Laurus.
8. Enforcement
8.1 Charge shall become Enforceable
The Charge shall become enforceable, and the powers conferred by
section 101 of the LPA as varied and extended by this deed shall be
exercisable, upon and at any time after the occurrence of an Event of
Default that is continuing.
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8.2 Section 101 LPA
The powers conferred by section 101 of the LPA, as varied and extended
by this deed, shall be deemed to have arisen immediately on the
execution of this deed.
8.3 Sections 93 and 103 LPA
Sections 93 and 103 of the LPA shall not apply to this deed.
9. Dealings with Charged Property on Enforcement
9.1 Rights of Laurus
At any time after the Charge has become enforceable, Laurus shall have
the right, without any notice to or consent of the Chargor:-
(A) Charged Property
to take any steps necessary to vest all or any of the Charged
Property in the name of Laurus or its nominee (including
completing any transfers of any Shares comprised in the
Charged Property) and to receive and retain any Dividends;
(B) Sell
to sell, exchange, convert into money or otherwise dispose of
or realise the Charged Property (whether by public offer or
private contract) to any person and for such consideration
(whether comprising cash, debentures or other obligations,
Shares or other valuable consideration of any kind) and on
such terms (whether payable or deliverable in a lump sum or by
instalments) as it may think fit, and for this purpose to
complete any transfers of the Charged Property;
(C) Voting Rights
to exercise or direct the exercise of all voting and other
Rights relating to the Charged Property in such manner as it
may think fit;
(D) Claims
to settle, adjust, refer to arbitration, compromise and
arrange any claims, accounts, disputes, questions and demands
relating in any way to the Charged Property;
(E) Legal actions
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to bring, prosecute, enforce, defend and abandon actions,
suits and proceedings in relation to the Charged Property; and
(F) Other Rights
to do all such other acts and things it may consider necessary
or expedient for the realisation of the Charged Property or
incidental to the exercise of any of the Rights conferred on
it under or in connection with this deed or the LPA and to
concur in the doing of anything which it has the Right to do
and to do any such thing jointly with any other person.
9.2 Obligations of Chargor
After the Charge has become enforceable:-
(A) all Dividends shall be paid to and retained by Laurus, and any
such moneys which may be received by the Chargor shall,
pending such payment, be segregated from any other property of
the Chargor and held in trust for Laurus; and
(B) the Chargor shall procure that all voting and other Rights
relating to the Charged Property are exercised in accordance
with such instructions (if any) as may from time to time be
given to the Chargor by Laurus, and the Chargor shall deliver
to Laurus such forms of proxy or other appropriate forms of
authorisation to enable Laurus to exercise such voting and
other Rights.
10. Application of Moneys
All moneys arising from the exercise of the powers of enforcement under
this deed shall (except as may be otherwise required by applicable law)
be held and applied in the following order of priority (but without
prejudice to the right of Laurus to recover any shortfall from the
Chargor):-
(A) in or towards the payment or discharge of such of the Secured
Liabilities in such order as Laurus in its absolute discretion
may from time to time determine; and
(B) after all the Secured Liabilities have been paid or discharged
in full, in payment of any surplus to the Chargor or other
person entitled to it.
11. General Rights of Laurus
11.1 Redemption of Security
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Laurus may at any time redeem any Security over the Charged Property
having priority to the Charge or procure the transfer thereof to Laurus
and may settle the accounts of encumbrancers. Any accounts so settled
shall be conclusive and binding on the Chargor. The Chargor shall on
demand pay to Laurus all principal moneys, interest, costs, charges,
losses, liabilities and expenses of and incidental to any such
redemption or transfer.
11.2 New Account
At any time following:
(A) Laurus receiving notice (either actual or constructive) of any
subsequent Security affecting the Charged Property or,
(B) the commencement of the insolvency, administration,
reorganisation, liquidation or dissolution of, or any
analogous proceeding in respect of, the Chargor,
Laurus may open a new account in the name of the Chargor (whether or
not it permits any existing account to continue).
If Laurus does not open such a new account, it shall nevertheless be
treated as if it had done so at the time when the notice was received
or was deemed to have been received or, as the case may be, the
insolvency, administration, reorganisation, liquidation, dissolution or
other proceeding commenced. Thereafter, all payments made by the
Chargor to Laurus or received by Laurus for the account of the Chargor
shall be credited or treated as having been credited to the new account
and shall not operate to reduce the amount secured by this deed at the
time when Laurus received or was deemed to have received such notice
or, as the case may be, the insolvency, administration, reorganisation,
liquidation, dissolution or other proceeding commenced.
11.3 Delegation
Laurus may delegate in any manner to any person any of the Rights which
are for the time being exercisable by Laurus under this deed. Any such
delegation may be made upon such terms and conditions (including power
to sub-delegate) as Laurus may think fit.
11.4 Set-off by Laurus
After the occurrence of an Event of Default that is continuing, Laurus
may without notice to the Chargor and without prejudice to any of
Laurus' other Rights, set off any Secured Liabilities which are due and
unpaid against any obligation (whether or not matured) owed by Laurus
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to the Chargor, regardless of the place of payment or booking branch,
and for that purpose Laurus may convert one currency into another at
the rate of exchange determined by Laurus in its absolute discretion to
be prevailing at the date of set-off.
12. Liability of Laurus, Delegates and Nominees
12.1 Possession
If Laurus or any Delegate shall take possession of the Charged
Property, it may at any time relinquish such possession.
12.2 Laurus' Liability
Laurus shall not in any circumstances (whether by reason of taking
possession of the Charged Property or for any other reason whatsoever
and whether as mortgagee in possession or on any other basis
whatsoever) be liable to the Chargor or any other person for any costs,
charges, losses, damages, liabilities or expenses arising from any
realisation of the Charged Property or from any exercise or
non-exercise by Laurus of any Right conferred upon it in relation to
the Charged Property or from any act, default, omission or misconduct
of Laurus, its officers, employees or agents in relation to the Charged
Property except to the extent that they shall be caused by Laurus's own
fraud, negligence or wilful misconduct or that of its officers or
employees.
12.3 Delegate's and Nominee's Liability
All the provisions of clause 12.2 shall apply, mutatis mutandis, in
respect of the liability of any Delegate or nominee of Laurus or any
officer, employee or agent of Laurus, any Delegate or any nominee of
Laurus.
12.4 Indemnity
Laurus and every Delegate, attorney, manager, agent or other person
appointed by Laurus hereunder shall be entitled to be indemnified out
of the Charged Property in respect of all liabilities and expenses
incurred by any of them in the execution or purported execution of any
of its Rights and against all actions, proceedings, costs, claims and
demands in respect of any matter or thing done or omitted in any way
relating to the Charged Property except to the extent that they are
caused by Laurus' own fraud, negligence or wilful misconduct or that of
its officers or employees, and Laurus and any such Delegate, attorney,
manager, agent or other person appointed by Laurus hereunder may retain
and pay all sums in respect of the same out of any moneys received.
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13. Protection of Third Parties
No person dealing with Laurus or any Delegate shall be concerned to
enquire whether any event has happened upon which any of the Rights
conferred under or in connection with this deed or the LPA are or may
be exercisable, whether any consents, regulations, restrictions or
directions relating to such Rights have been obtained or complied with
or otherwise as to the propriety or regularity of acts purporting or
intended to be in exercise of any such Rights or as to the application
of any money borrowed or raised or other proceeds of enforcement. All
the protections to purchasers contained in sections 104 and 107 of the
LPA and in Section 42(3) of the Insolvency Act 1986 or in any other
legislation for the time being in force shall apply to any person
purchasing from or dealing with Laurus or any Delegate.
14. Continuing Security
The Charge created by this deed shall be a continuing security for and
will extend to the ultimate balance of all the Secured Liabilities and
shall not be satisfied, discharged or affected by any intermediate
payment or settlement of account (whether or not any Secured
Liabilities remain outstanding thereafter) or any other matter or thing
whatsoever.
15. Other Security
The Charge and the rights given to Laurus under this deed shall be in
addition to and shall not prejudice or be prejudiced by any other
Security or any guarantee or indemnity or any other right which Laurus
may at any time have in respect of or in connection with of the Secured
Liabilities. All such rights may be exercised from time to time as
often as Laurus may deem expedient.
16. Immediate Recourse
Laurus need not, before exercising any of the rights, title benefit and
interest conferred on it by this deed or by law:
(i) take action or obtain judgment against the Chargor or
any other person in any court;
(ii) make a file any claim or proof in the liquidation of
the Chargor or any other person; or
(iii) enforce or seek to enforce the recovery of moneys and
liabilities hereby secured or enforce or seek to
enforce any other security interest or guarantee.
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17. Charge not to be Affected
Without prejudice to clauses 14 and 15, neither the Charge nor the
liability of the Chargor for the Secured Liabilities shall be
prejudiced or affected by:-
(A) any variation or amendment of, or waiver or release granted
under or in connection with, any other Security or any
guarantee or indemnity or other document; or
(B) time being given, or any other indulgence or concession being
granted, by Laurus to the Chargor or any other person; or
(C) the taking, holding, failure to take or hold, varying,
realisation, non-enforcement, non-perfection or release by
Laurus or any other person of any other Security, or any
guarantee or indemnity or other document; or
(D) the insolvency, administration, reorganisation, liquidation or
dissolution of, or any analogous proceeding in respect of, the
Chargor or any other person; or
(E) any change in the constitution of the Chargor; or
(F) any amalgamation, merger or reconstruction that may be
effected by Laurus with any other person or any sale or
transfer of the whole or any part of the undertaking, property
and assets of Laurus to any other person; or
(G) the existence of any claim, set-off or other right which the
Chargor may have at any time against Laurus or any other
person; or
(H) the making or absence of any demand for payment of any Secured
Liabilities on the Chargor or any other person, whether by
Laurus or any other person; or
(I) any arrangement or compromise entered into by Laurus with the
Chargor or any other person; or
(J) any other thing done or omitted or neglected to be done by
Laurus or any other person or any other dealing, fact, matter
or thing which, but for this provision, might operate to
prejudice or affect the liability of the Chargor for the
Secured Liabilities.
18. Release of Charged Property
18.1 Release of Charged Property
If:
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(A) all Secured Liabilities have been unconditionally and
irrevocably paid or discharged in full and the Note has been
terminated; or
(B) Security or a guarantee for the Secured Liabilities, in each
case acceptable to Laurus, has been provided in substitution
for this deed,
then, subject to clause 18.3, Laurus shall at the request and cost of
the Chargor execute such deeds and do all such acts and things as may
be necessary to release the Charged Property from the Charge.
18.2 Reinstatement
(A) Any re-assignment, release, settlement or discharge of the
Secured Liabilities or any Security for the Secured
Liabilities shall be conditional upon no payment to or
Security provided to Laurus in respect of the Secured
Liability being avoided, invalidated, reduced or required to
be restored or paid away by virtue of any requirement having
force of law.
(B) To the extent that such re-assignment, release, settlement or
discharge of the Secured Liabilities is made on the faith of
any payment or Security which is avoided, invalidated, reduced
or required to be restored or paid away, such re-assignment,
release settlement or discharge shall be treated as null and
void and Laurus shall be entitled to recover the amount of any
such payment or Security and the relevant Secured Liability
shall continue as if the re-assignment, release, settlement or
discharge had not occurred.
18.3 Retention of Deed
If the Chargor requests Laurus to release the Charged Property from the
Charge following any payment or discharge made or Security or guarantee
given in relation to the Secured Liabilities by a person other than the
Chargor (a "Relevant Transaction"), Laurus shall be entitled to retain
this deed (and all stock and share certificates, documents of title and
other documentary evidence of ownership in relation to the Charged
Property deposited with Laurus pursuant to clause 4) and shall not be
obliged to release the Charged Property from the Charge until the
expiry of the Retention Period in relation to that Relevant
Transaction. If at any time before the expiry of that Retention Period
any step has been taken for or with a view to the administration,
liquidation or dissolution of such other person or any analogous
proceeding in respect of such other person, Laurus may continue to
retain this deed (and all such stock and share certificates, documents
of title and documentary evidence) and shall not be obliged to release
the Charged Property from the Charge for such further period as Laurus
may determine.
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18.4 Retention Period
For the purpose of clause 18.3 "Retention Period" means, in relation to
any Relevant Transaction, the period which commences on the date when
that Relevant Transaction was made or given, and which ends on the date
falling one month after the expiration of the maximum period within
which that Relevant Transaction can be avoided, reduced or invalidated
by virtue of any applicable law or for any other reason whatsoever.
19. Power of Attorney
19.1 Appointment
The Chargor hereby appoints, irrevocably and by way of security, Laurus
and any person nominated in writing by Laurus as attorney of the
Chargor severally to be the attorney of the Chargor (with full powers
of substitution and delegation), on its behalf and in its name or
otherwise, at such time and in such manner as the attorney may think
fit:-
(A) to do anything which the Chargor is or may be obliged to do
(but has not done) under this deed including, but without
limitation, to complete and execute any transfer of Shares;
and
(B) generally to exercise all or any of the Rights conferred on
Laurus in relation to the Charged Property or under or in
connection with this deed or the LPA.
19.2 Ratification
The Chargor covenants to ratify and confirm whatever any attorney shall
do or purport to do in the exercise or purported exercise of the power
of attorney in clause 19.1.
20. Currency Indemnity
20.1 Currency Indemnity
If, under any applicable law, whether pursuant to a judgment against
the Chargor or the administration, liquidation or dissolution of the
Chargor or for any other reason, any payment under or in connection
with this deed is made or falls to be satisfied in a currency (the
"Other Currency") other than the currency in which the relevant payment
is expressed to be payable (the "Required Currency"), then, to the
extent that the payment actually received by Laurus (when converted
into the Required Currency at the rate of exchange on the date of
payment or, if it is not practicable for Laurus to make the conversion
on that date, at the rate of exchange as soon afterwards as it is
practicable for Laurus to do so or, in the case of an administration,
liquidation or dissolution, at the rate of exchange on the latest date
permitted by applicable law for the determination of liabilities in
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such proceeding) falls short of the amount expressed to be due or
payable under or in connection with this deed, the Chargor shall, as an
original and independent obligation under this deed, indemnify and hold
Laurus harmless against the amount of such shortfall.
20.2 Rate of Exchange
For the purpose of clause 19.1, "rate of exchange" means the rate at
which Laurus is able on the relevant date to purchase the Required
Currency with the Other Currency and shall take into account any
commission, premium and other costs of exchange and Taxes payable in
connection with such purchase.
21. Certificate to be Conclusive Evidence
For all purposes, including any Proceedings, a copy of a certificate
signed by an officer of Laurus as to the amount of any indebtedness
comprised in the Secured Liabilities for the time being shall, in the
absence of manifest error, be conclusive evidence against the Chargor
as to the amount thereof.
22. Stamp Duty
The Chargor shall pay promptly, and in any event before any penalty
becomes payable, all stamp, documentary and similar taxes, if any,
payable in connection with the entry into, performance, enforcement or
admissibility in evidence of this deed or any other document referred
to in this deed, and shall indemnify Laurus against any liability with
respect to, or resulting from any delay in paying or omission to pay,
any such tax.
23. Costs and Expenses
The Chargor shall indemnify Laurus on demand against all reasonable
costs, charges, losses, liabilities, expenses and other sums (including
legal, accountants' and other professional fees) and any Taxes thereon
expended, paid, incurred or debited on account by Laurus in relation to
this deed, and/or any other document referred to in this deed,
including, without prejudice to the generality of the foregoing:-
(A) in connection with the negotiation, preparation, execution,
stamping, filing, registration and perfection of this deed;
(B) in connection with the granting of any waiver or consent
sought by the Chargor or in connection with any variation,
amendment, extension or modification of, or supplement to,
this deed;
(C) in enforcing, protecting, preserving or realising, or
attempting to enforce, protect, preserve or realise, Laurus'
Rights under this deed; and
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(D) in connection with or contemplation of any Proceedings or the
recovery or attempted recovery of any Secured Liabilities.
24. Communications
24.1 Communications to be in Writing
Any communication given or made under or in connection with the matters
contemplated by this deed shall be in writing.
24.2 Deemed Delivery
Any such communication shall be addressed as provided in clause 24.3
and, if so addressed, shall be deemed to have been duly given or made
as follows:-
(A) if sent by personal delivery, upon delivery at the address of
the relevant party;
(B) if sent by fax, upon receipt by the relevant party,
provided that if, in accordance with the above provisions, any such
communication would otherwise be deemed to be given or made outside
Working Hours, such communication shall be deemed to be given or made
at the start of the next period of Working Hours.
24.3 Parties' Details
The relevant details of each party for the purposes of this deed,
subject to clause 24.4, are:-
Party Addressee Address Fax No.
----- --------- ------- -------
Laurus Master David Grin Laurus Master 212 541 4434
Fund, Ltd. Fund, Ltd. c/o
Laurus Capital
Management LLC
152 West 57th
Street, New York,
New York 10019
Inyx, Inc. Dr. Jack Inyx, Inc., 305-365-3963
Kachkar 9th Floor
801 Brickell
Avenue, Miami,
Florida 33131
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24.4 Change of Details
Either party may notify the other party at any time of a change to its
details for the purposes of clause 24.3 provided that such notification
shall only be effective on:-
(A) the date specified in the notification as the date on which
the change is to take place; or
(B) if no date is specified or the date specified is less than
five Business Days after the date on which notice is given,
the date falling five Business Days after notice of any such
change has been given.
25. Rights and Waivers
25.1 Delay
No delay or omission on the part of Laurus in exercising any Right
provided by law or under this deed shall impair such Right or operate
as a waiver thereof or of any other Right.
25.2 Single or Partial Exercise
The single or partial exercise by Laurus of any Right provided by law
or under this deed shall not preclude any other or further exercise
thereof or the exercise of any other Right.
25.3 Rights to be Cumulative
The Rights provided in this deed are cumulative with, and not exclusive
of, any Rights provided by law.
26. Invalidity
If at any time any provision of this deed is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, neither:-
(A) the legality, validity or enforceability in that jurisdiction
of any other provision of this deed; nor
(B) the legality, validity or enforceability under the law of any
other jurisdiction of that or any other provision of this
deed,
shall be affected or impaired.
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27. Assignment by Laurus
Laurus may at any time, without the consent of the Chargor, assign or
transfer the whole or, as the case may be, any part of Laurus' Rights
under this deed to any person to whom the whole or any part of any of
Laurus' rights under the Note shall be assigned or transferred.
28. Contracts (Rights of Third Parties) Act 1999
The parties to this agreement do not intend that any term of this
agreement should be enforceable, by virtue of the Contracts (Rights of
Third Parties) Act 1999, by any person who is not a party to this
agreement.
29. Governing Law
This deed shall be governed by and construed in accordance with English
law.
IN WITNESS WHEREOF the Chargor and Laurus have executed this document as a deed
the day and year first before written.
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SCHEDULE 1
No. of Class of Nominal Value Registered holder(s)
Name of Company Shares Shares of each Share as at the date hereof
- --------------- ------ ------ ------------- ---------------------
Inyx Pharma Limited 1,000,000 ordinary (pound)0.01 Inyx, Inc.
(representing shares
100% of the
current issued
share capital of
Inyx Pharma
Limited)
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DAL:473001.1
NY032800003
22
DAL:473001.1
Executed as a deed by LAURUS )
MASTER FUND, LTD. acting by )
) ./s/.................................
)
who, in accordance with the laws ) .....................................
of the Cayman Islands [is/ are] ) Authorised Signatories)
acting under the authority of )
Laurus Master Fund, Ltd. )
Executed as a deed by Inyx, Inc. )
acting by Dr. John Kashkar who )
in accordance with the laws of ) ...../s/ Jack Kachkar................
Nevada, U.S.A. is acting under )
the authority of Inyx, Inc. )
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