Exhibit 10.4
FORM OF GUARANTY
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1.
Identification.
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This Guaranty (the "Guaranty"), dated as of November16, 2006,
is
entered into by Stem Cell Innovations BV, a Netherlands
corporation, Amphioxus
Cell Technologies, Inc., a Delaware corporation (each a
"Guarantor"), for the
benefit of the parties identified on Schedule A hereto (each a
"Lender" and
collectively, the "Lenders").
2.
Recitals.
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2.1 Guarantor
is a direct or indirect subsidiary of Stem Cell
Innovations, Inc., a Delaware corporation ("Parent"). The Lenders
have made, are
making and will be making loans to Parent (the "Loans"). Guarantor
will obtain
substantial benefit from the proceeds of the Loans.
2.2 The Loans
are and will be evidenced by certain promissory
Notes (collectively, "Note" or "Notes") issued by Parent on, about
or after the
date of this Guaranty pursuant to subscription agreements dated at
or about the
date hereof ("Subscription Agreements"). The Notes are further
identified on
Schedule A hereto and were and will be executed by Parent as
"Borrower" or
"Debtor" for the benefit of each Lender as the "Holder" or "Lender"
thereof.
2.3 In
consideration of the Loans made and to be made by Lenders
to Parent and for other good and valuable consideration, and as
security for the
performance by Parent of its obligations under the Notes and as
security for the
repayment of the Loans and all other sums due from Debtor to
Lenders arising
under the Notes, Subscription Agreements and any other agreement
between or
among them relating to the foregoing (collectively, the
"Obligations"),
Guarantor, for good and valuable consideration, receipt of which
is
acknowledged, has agreed to enter into this Guaranty. Obligations
include all
future advances by Lenders to Parent made by Lenders pursuant to
the
Subscription Agreement.
2.4 The
Lenders have appointed Barbara R. Mittman as Collateral
Agent pursuant to that certain Collateral Agent Agreement dated at
or about the
date of this Agreement ("Collateral Agent Agreement"), among the
Lenders and
Collateral Agent.
3.
Guaranty.
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3.1 Guaranty.
Guarantor hereby unconditionally and irrevocably
guarantees, jointly and severally with any other Guarantor, the
punctual
payment, performance and observance when due, whether at stated
maturity, by
acceleration or otherwise, of all of the Obligations now or
hereafter existing,
whether for principal, interest (including, without limitation, all
interest
that accrues after the commencement of any insolvency, bankruptcy
or
reorganization of Parent, whether or not constituting an allowed
claim in such
proceeding), fees, commissions, expense reimbursements, liquidated
damages,
indemnifications or otherwise (such obligations, to the extent not
paid by
Parent being the "Guaranteed Obligations"), and agrees to pay any
and all
reasonable costs, fees and expenses (including reasonable counsel
fees and
expenses) incurred by Collateral Agent and the Lenders in enforcing
any rights
under the guaranty set forth herein. Without limiting the
generality of the
foregoing, Guarantor's liability shall extend to all amounts that
constitute
part of the Guaranteed Obligations and would be owed by Parent to
Collateral
Agent and the Lenders, but for the fact that they are unenforceable
or not
allowable due to the existence of an insolvency, bankruptcy or
reorganization
involving Parent.
3.2 Guaranty
Absolute. Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of
the Notes,
regardless of any law, regulation or order now or hereafter in
effect in any
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jurisdiction affecting any of such terms or the rights of
Collateral Agent or
the Lenders with respect thereto. The obligations of Guarantor
under this
Guaranty are independent of the Guaranteed Obligations, and a
separate action or
actions may be brought and prosecuted against Guarantor to enforce
such
obligations, irrespective of whether any action is brought against
Parent or any
other Guarantor or whether Parent or any other Guarantor is joined
in any such
action or actions. The liability of Guarantor under this Guaranty
constitutes a
primary obligation, and not a contract of surety, and to the extent
permitted by
law, shall be irrevocable, absolute and unconditional irrespective
of, and
Guarantor hereby irrevocably waives any defenses it may now or
hereafter have in
any way relating to, any or all of the following:
(a) any lack of validity or enforceability of the Notes or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or
any other
amendment or waiver of or any consent to departure from the Notes,
including,
without limitation, any increase in the Guaranteed Obligations
resulting from
the extension of additional credit to Parent or otherwise;
(c) any taking, exchange, release, subordination or
non-perfection of any Collateral, or any taking, release or
amendment or waiver
of or consent to departure from any other guaranty, for all or any
of the
Guaranteed Obligations;
(d) any change, restructuring or termination of the corporate,
limited liability company or partnership structure or existence of
Parent; or
(e) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by
Collateral Agent or the Lenders that might otherwise constitute a
defense
available to, or a discharge of, Parent or any other guarantor or
surety.
This Guaranty shall continue to be effective or be reinstated, as
the case may
be, if at any time any payment of any of the Guaranteed Obligations
is rescinded
or must otherwise be returned by Collateral Agent, the Lenders or
any other
entity upon the insolvency, bankruptcy or reorganization of the
Parent or
otherwise (and whether as a result of any demand, settlement,
litigation or
otherwise), all as though such payment had not been made.
3.3 Waiver.
Guarantor hereby waives promptness, diligence, notice
of acceptance and any other notice with respect to any of the
Guaranteed
Obligations and this Guaranty and any requirement that Collateral
Agent or the
Lenders or exhaust any right or take any action against any
Borrower or any
other person or entity or any Collateral. Guarantor acknowledges
that it will
receive direct and indirect benefits from the financing
arrangements
contemplated herein and that the waiver set forth in this Section
3.3 is
knowingly made in contemp
