EXHIBIT 10.5
NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of November 7, 2003, by and
between Animas Corporation and Animas Diabetes Care, LLC (collectively, the
"Borrowers") and Silicon Valley Bank ("Bank").
In connection with, among other documents, the Loan and Security
Agreement (the "Loan Agreement") of even date herewith by and among the
Borrowers and Bank, and the Loan Documents defined therein being concurrently
executed herewith between Borrowers and Bank, Borrower agrees as follows:
1. Except as permitted under Section 5.5 of the Loan Agreement,
Borrower shall not (a) sell, transfer, assign, mortgage,
pledge, lease, grant a security interest in, or encumber, or
(b) enter into any agreement, document, instrument or other
arrangement [except with or in favor of the Bank or in
connection with any joint venture or similar agreement between
any Borrower and any third party related to Glucose Sensor or
Glucose Monitor technology developed under the National
Institute of Standards and Technology (NIST) Cooperative
Agreement, including, without limitation, that certain Joint
Venture Agreement by and between Borrower and Xxxxxxx
Corporation dated July 31, 2001 (a "JV Agreement")] with any
Person which directly or indirectly prohibits or has the
effect of prohibiting Borrower from selling, transferring,
assigning, mortgaging, pledging, leasing, granting a security
interest in or upon, or encumbering any of Borrower's
intellectual property related to any joint venture or similar
agreement between any Borrower and any third party related to
Glucose Sensor or Glucose Monitor technology developed under
the National Institute of Standards and Technology (NIST)
Cooperative Agreement, including, without limitation, that
certain Joint Venture Agreement by and between Borrower and
Xxxxxxx Corporation dated July 31, 2001 including, without
limitation, the following:
a. Any and all copyright rights, copyright applications,
copyright registrations and like protections in each
work or authorship and derivative work thereof,
whether published or unpublished and whether or not
the same also constitutes a trade secret, now or
hereafter existing, created, acquired or held;
b. All mask works or similar rights available for the
protection of semiconductor chips, now owned or
hereafter acquired;
c. Any and all trade secrets, and any and all
intellectual property rights in computer software and
computer software products now or hereafter existing,
created, acquired or held,
d. Any and all design rights which may be available to
Borrower now or hereafter existing, created, acquired
or held;
e. All patents, patent applications and like protections
including, without limitation, improvements,
divisions, continuations, renewals, reissues,
extensions and continuations-in-part of the same,
including without limitation the patents and patent
applications;
f. Any trademark and servicemark rights, whether
registered or not, applications to register and
registrations of the same and like protections, and
the entire goodwill of the business of Borrower
connected with and symbolized by such trademarks;
g. Any and all claims for damages by way of past,
present and future infringements of any of the rights
included above, with the right, but not the
obligation, to xxx for and collect such damages for
said use or infringement of the intellectual property
rights identified above;
h. All licenses or other rights to use any of the
Copyrights, Patents or Trademarks, and all license
fees and royalties arising from such use to the
extent permitted by such license or rights; and
i. All amendments, extensions, renewals and extensions
of any Intellectual Property; and
j. All proceeds and products of the foregoing, including
without limitation all payments under insurance or
any indemnity or warranty payable in respect of any
of the foregoing.
2. Notwithstanding anything to the contrary contained herein,
there shall be no restrictions on the Borrower's ability to
enter into non-exclusive licenses of its Intellectual Property
in the ordinary course of business.
3. It shall be an event of default under the Loan Documents
between Borrower and Bank if there is a breach of any term of
this Negative Pledge Agreement.
4. Capitalized terms used but not otherwise defined herein shall
have the same meaning as in the Loan Documents.
BORROWERS:
ANIMAS CORPORATION
By: /s/ XXXXXXX X. XXXXX
---------------------
Name: XXXXXXX X. XXXXX
Title: V.P. Finance
ANIMAS DIABETES CARE, LLC
By: ANIMAS CORPORATION
BY: /s/ XXXXXXX X. XXXXX
---------------------
Name: XXXXXXX X. XXXXX
Title: V.P. Finance
BANK:
SILICON VALLEY BANK
By: /s/ XXXX XXXXXXXXX
-----------------------
Name: XXXXX X. XXXXXXXXX
Title: VP
