PATENT AND TRADEMARK ASSIGNMENT AND SECURITY AGREEMENT
THIS PATENT AND TRADEMARK ASSIGNMENT AND SECURITY AGREEMENT (this
"Agreement"), dated as of November 1, 1999, is made between NORTH AMERICAN
VACCINE, INC., a Canadian corporation ("Assignor") and [*], a Delaware
corporation ("Assignee").
Assignor and Assignee are parties to a Security Agreement dated as of
November 1, 1999 (as amended, modified, renewed or extended from time to time,
the "Security Agreement"), which Security Agreement provides, among other
things, for the assignment by Assignor to Assignee, and grant by Assignor to
Assignee of a security interest in, certain of Assignor's property and assets,
including, without limitation, its patents and patent applications, its
trademarks, service marks and trade names, and its applications for registration
of such trademarks, service marks and trade names. Pursuant to the Loan
Agreement Assignor has agreed to execute and deliver this Agreement to Assignee
for filing with the United States Patent and Trademark Office (the "PTO") (and
any other relevant recording systems in any domestic or foreign jurisdiction),
and as further evidence of and to effectuate such assignment of and grant of a
security interest in such patents and patent applications, trademarks, service
marks and trade names, and applications for registration of such trademarks,
service marks and trade names, and the other general intangibles described
herein. Accordingly, Assignor and Assignee hereby agree as follows:
SECTION 1 DEFINITIONS; INTERPRETATION.
(a) All capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings assigned to them in the Security
Agreement.
(b) In this Agreement, (i) the meaning of defined terms shall be
equally applicable to both the singular and plural forms of the terms defined;
and (ii) the captions and headings are for convenience of reference only and
shall not affect the construction of this Agreement.
SECTION 2 ASSIGNMENT AND GRANT OF SECURITY INTEREST.
(a) As security for the payment and performance of the Obligations (as
defined in the Security Agreement), Assignor hereby assigns, transfers and
conveys and grants a security interest in and mortgage to Assignee, for security
purposes, all of Assignor's right, title and interest in, to and under the
following property, whether now existing or owned or hereafter acquired,
developed or arising (collectively, the "Intellectual Property Collateral"):
(i) all patents and patent applications, domestic or foreign, all
licenses relating to any of the foregoing and all income and royalties with
respect to any licenses (including, without limitation, such patents and patent
applications as described in SCHEDULE A hereto), all rights to xxx for past,
present or future infringement thereof, all rights arising therefrom and
pertaining thereto and all reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof;
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* Confidential treatment requested.
1.
(ii) all state (including common law), federal and foreign trademarks,
service marks and trade names, and applications for registration of such
trademarks, service marks and trade names, all licenses relating to any of the
foregoing and all income and royalties with respect to any licenses (including,
without limitation, such marks, names and applications as described in SCHEDULE
B hereto), whether registered or unregistered and wherever registered, all
rights to xxx for past, present or future infringement or unconsented use
thereof, all rights arising therefrom and pertaining thereto and all reissues,
extensions and renewals thereof;
(iii) the entire goodwill of or associated with the businesses now or
hereafter conducted by Assignor connected with and symbolized by any of the
aforementioned properties and assets;
(iv) all general intangibles (as defined in the UCC) and all
intangible intellectual or other similar property of the Assignor of any kind or
nature, associated with or arising out of any of the aforementioned properties
and assets and not otherwise described above; and
(v) all products and proceeds of any and all of the foregoing.
(a) This Agreement shall create a continuing security interest in the
Intellectual Property Collateral which shall remain in effect until terminated
in accordance with Section 17 hereof.
(b) Notwithstanding the foregoing provisions of this Section 2, the
grant of a security interest as provided herein shall not extend to, and the
term "Intellectual Property Collateral" shall not include, (1) that certain U.S.
Patent No. 5,425,946 which is covered by a security interest in favor of Bankers
Trust Company as evidenced by the filing in the U.S. Patent and Trademark Office
(the "Excluded Patent Collateral"), and (2) any general intangibles of Debtor
(whether owned or held as licensee or lessee, or otherwise), to the extent that
(i) such general intangibles are not assignable or capable of being encumbered
as a matter of law or under the terms of the license, lease or other agreement
applicable thereto (but solely to the extent that any such restriction shall be
enforceable under applicable law), without the consent of the licensor or lessor
thereof or other applicable party thereto and (ii) such consent has not been
obtained; PROVIDED, HOWEVER, that the foregoing grant of security interest shall
extend to, and the term "Intellectual Property Collateral" shall include, (A)
any general intangible which is an account receivable or a proceed of, or
otherwise related to the enforcement or collection of, any account receivable,
or goods which are the subject of any account receivable, (B) any and all
proceeds of any general intangibles which are otherwise excluded to the extent
that the assignment or encumbrance of such proceeds is not so restricted, and
(C) upon obtaining the consent of any such licensor, lessor or other applicable
party's consent with respect to any such otherwise excluded general intangibles,
such general intangibles as well as any and all proceeds thereof that might have
theretofore have been excluded from such grant of a security interest and the
term "Intellectual Property Collateral."
SECTION 3 FURTHER ASSURANCES; APPOINTMENT OF ASSIGNEE AS
ATTORNEY-IN-FACT. Assignor at its expense shall execute and deliver, or cause to
be executed and delivered, to Assignee any and all documents and instruments, in
2.
form and substance satisfactory to Assignee, and take any and all action, which
Assignee may reasonably request from time to time, to perfect and continue
perfected, maintain the priority of or provide notice of Assignee's security
interest in the Intellectual Property Collateral and to accomplish the purposes
of this Agreement. Assignee shall have the right to, in the name of the
Assignor, or in the name of Assignee or otherwise, without notice to or assent
by the Assignor, and the Assignor hereby irrevocably constitutes and appoints
Assignee (and any of Assignee's officers or employees or agents designated by
Assignee) as the Assignor's true and lawful attorney-in-fact with full power and
authority, (i) to sign the name of the Assignor on all or any of such documents
or instruments and perform all other acts that Assignee deems necessary or
advisable in order to perfect or continue perfected, maintain the priority or
enforceability of or provide notice of Assignee's security interest in, the
Intellectual Property Collateral, and (ii) to execute any and all other
documents and instruments, and to perform any and all acts and things for and on
behalf of the Assignor, which Assignee may deem necessary or advisable to
maintain, preserve and protect the Intellectual Property Collateral and to
accomplish the purposes of this Agreement, including (A) to defend, settle,
adjust or (after the occurrence of any Event of Default) institute any action,
suit or proceeding with respect to the Intellectual Property Collateral, and,
after the occurrence of any Event of Default, (B) to assert or retain any rights
under any license agreement for any of the Intellectual Property Collateral,
including without limitation any rights of the Assignor arising under Section
365(n) of the Bankruptcy Code, and (C) after the occurrence of any Event of
Default, to execute any and all applications, documents, papers and instruments
for Assignee to use the Intellectual Property Collateral, to grant or issue any
exclusive or non-exclusive license or sub-license with respect to any
Intellectual Property Collateral, and to assign, convey or otherwise transfer
title in or dispose of the Intellectual Property Collateral; provided, however,
that in no event shall Assignee have the unilateral power, prior to the
occurrence and continuation of an Event of Default, to assign any of the
Intellectual Property Collateral to any Person, including itself, without the
Assignor's written consent. The foregoing shall in no way limit Assignee's
rights and remedies upon or after the occurrence of an Event of Default. The
power of attorney set forth in this Section 3, being coupled with an interest,
is irrevocable so long as this Agreement shall not have terminated in accordance
with Section 17.
SECTION 4 FUTURE RIGHTS. Except as otherwise expressly agreed to in
writing by Assignee, if and when the Assignor shall obtain rights to any new
patentable inventions or any new trademarks, or become entitled to the benefit
of any of the foregoing, or obtain rights or benefits with respect to any
reissue, division, continuation, renewal, extension or continuation-in-part of
any patents or trademarks, or any improvement of any patent, the provisions of
Section 2 shall automatically apply thereto and the Assignor shall give to
Assignee prompt notice thereof. Assignor shall do all things deemed necessary or
advisable by Assignee to ensure the validity, perfection, priority and
enforceability of the security interests of Assignee in such future acquired
Intellectual Property Collateral. Assignor hereby authorizes Assignee to modify,
amend, or supplement the Schedules hereto and to reexecute this Agreement from
time to time on Assignor's behalf and as its attorney-in-fact to include any
3.
such future Intellectual Property Collateral and to cause such reexecuted
Agreement or such modified, amended or supplemented Schedules to be filed with
PTO.
SECTION 5 ASSIGNEE'S DUTIES. Notwithstanding any provision contained
in this Agreement, Assignee shall have no duty to exercise any of the rights,
privileges or powers afforded to it and shall not be responsible to the Assignor
or any other Person for any failure to do so or delay in doing so. Except for
the accounting for moneys actually received by Assignee hereunder or in
connection herewith, Assignee shall have no duty or liability to exercise or
preserve any rights, privileges or powers pertaining to the Intellectual
Property Collateral.
SECTION 6 REPRESENTATIONS AND WARRANTIES. Assignor represents and
warrants to Assignee that:
(a) A true and correct list of all of the existing Intellectual
Property Collateral consisting of U.S. patents and patent applications and/or
registrations owned by the Assignor, in whole or in part, and pledged as
collateral hereunder, is set forth in SCHEDULE A.
(b) A true and correct list of all of the existing Intellectual
Property Collateral consisting of U.S. trademarks, trademark registrations
and/or applications owned by the Assignor, in whole or in part, and pledged as
collateral hereunder is set forth in SCHEDULE B.
(c) All patents, trademarks, service marks and trade names of Assignor
are subsisting and have not been adjudged invalid or unenforceable in whole or
in part.
(d) All maintenance fees required to be paid on account of any patents
or trademarks of Assignor have been timely paid for maintaining such patents and
trademarks in force, and, to the best of Assignor's knowledge, each of the
patents and trademarks constituting part of the Intellectual Property Collateral
is valid and enforceable.
(e) To the best of Assignor's knowledge after due inquiry, no material
infringement or unauthorized use presently is being made of any Intellectual
Property Collateral by any Person.
(f) Except as otherwise disclosed in writing by Debtor to Secured
Party, Assignor is the sole and exclusive owner of the Intellectual Property
Collateral and the past, present and contemplated future use of such
Intellectual Property Collateral by Assignor has not, does not and will not
infringe or violate any right, privilege or license agreement of or with any
other Person.
SECTION 7 COVENANTS.
(a) Assignor will appear in and defend any action, suit or proceeding
which may affect to a material extent its title to, or Assignee's rights or
interest in, the Intellectual Property Collateral.
4.
(b) Assignor will not allow or suffer any Intellectual Property
Collateral to become abandoned, nor any registration thereof to be terminated,
forfeited, expired or dedicated to the public.
(c) Assignor will diligently prosecute all applications for patents and
trademarks, and file and prosecute any and all continuations,
continuations-in-part, applications for reissue, applications for certificate of
correction and like matters as shall be reasonable and appropriate in accordance
with prudent business practice, and promptly pay any and all maintenance,
license, registration and other fees, taxes and expenses incurred in connection
with any Intellectual Property Collateral.
SECTION 8 ASSIGNEE'S RIGHTS AND REMEDIES.
(a) Assignee shall have all rights and remedies available to it under
the Security Agreement, the other Documents and applicable law with respect to
the security interests in any of the Intellectual Property Collateral or any
other collateral. Assignor agrees that such rights and remedies include, but are
not limited to, the right of Assignee as a secured party to sell or otherwise
dispose of its collateral after default pursuant to the UCC. Assignor agrees
that Assignee shall at all times have such royalty free licenses, to the extent
permitted by law and to the extent of Assignor's rights therein, for any
Intellectual Property Collateral that shall be reasonably necessary to permit
the exercise of any of Assignee's rights or remedies upon or after the
occurrence of an Event of Default and shall additionally have the right to
license and/or sublicense any Intellectual Property Collateral upon or after the
occurrence of an Event of Default, whether general, special or otherwise, and
whether on an exclusive or a nonexclusive basis, any of the Intellectual
Property Collateral, throughout the world for such term or terms, on such
conditions, and in such manner, as Assignee in its sole discretion shall
determine. In addition to and without limiting any of the foregoing, upon the
occurrence and during the continuance of an Event of Default, Assignee shall
have the right but shall in no way be obligated to bring suit, or to take such
other action as Assignee deems necessary or advisable, in the name of the
Assignor or Assignee, to enforce or protect any of the Intellectual Property
Collateral, in which event the Assignor shall, at the request of Assignee, do
any and all lawful acts and execute any and all documents required by Assignee
in aid of such enforcement. To the extent that Assignee shall elect not to bring
suit to enforce such Intellectual Property Collateral, Assignor agrees to use
all reasonable measures and its diligent efforts, whether by action, suit,
proceeding or otherwise, to prevent the infringement, misappropriation or
violations thereof by others and for that purpose agrees diligently to maintain
any action, suit or proceeding against any Person necessary to prevent such
infringement, misappropriation or violation.
(b) The cash proceeds actually received from the sale or other
disposition or collection of Intellectual Property Collateral, and any other
amounts received in respect of the Intellectual Property Collateral the
application of which is not otherwise provided for herein, shall be applied as
provided in the Security Agreement.
SECTION 9 NOTICES. All notices or other communications hereunder shall
be in writing (including by facsimile transmission) shall be mailed, sent or
5.
delivered in accordance with the Security Agreement at or to their respective
addresses or facsimile numbers set forth below their names on the signature
pages hereof, or at or to such other address or facsimile number as shall be
designated by any party in a written notice to the other parties hereto. All
such notices and other communications shall be effective as provided in the
Security Agreement.
SECTION 10 NO WAIVER; CUMULATIVE REMEDIES. No failure on the part of
Assignee to exercise, and no delay in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, remedy, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights and remedies under this Agreement are cumulative
and not exclusive of any rights, remedies, powers and privileges that may
otherwise be available to Assignee.
SECTION 11 COSTS AND EXPENSES; INDEMNITY.
(a) Assignor agrees to pay on demand all costs and expenses of
Assignee, including without limitation all attorneys' fees, in connection with
the enforcement or attempted enforcement of, and preservation of any rights or
interests under, this Agreement, and the assignment, sale or other disposal of
any of the Intellectual Property Collateral.
(b) Assignor hereby agrees to indemnify Assignee, any affiliate
thereof, and their respective directors, officers, employees, agents, counsel
and other advisors (each an "Indemnified Person") against, and hold each of them
harmless from, any and all liabilities, obligations, losses, claims, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever, including, without limitation, reasonable attorneys'
fees and attorneys' fees incurred pursuant to 11 U.S.C., which may be imposed
on, incurred by, or asserted against any Indemnified Person, in any way relating
to or arising out of this Agreement, including in connection with any
infringement or alleged infringement with respect to any Intellectual Property
Collateral, or any action taken or omitted to be taken by it hereunder (the
"Indemnified Liabilities"); provided that Assignor shall not be liable to any
Indemnified Person for any portion of such Indemnified Liabilities to the extent
they are found by a final decision of a court of competent jurisdiction to have
resulted from such Indemnified Person's gross negligence or willful misconduct.
If and to the extent that the foregoing indemnification is for any reason held
unenforceable, Assignor agrees to make the maximum contribution to the payment
and satisfaction of each of the Indemnified Liabilities which is permissible
under applicable law.
(c) Any amounts payable to Assignee under this Section 11 or otherwise
under this Agreement if not paid upon demand shall bear interest from the date
of such demand until paid in full, at the default rate of interest set forth in
the Bank Loan Agreement.
SECTION 12 BINDING EFFECT. This Agreement shall be binding upon, inure
to the benefit of and be enforceable by Assignor, Assignee and their respective
successors and assigns.
6.
SECTION 13 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York, except to the
extent that the validity or perfection of the assignment and security interests
hereunder in respect of any Intellectual Property Collateral are governed by
federal law and except to the extent that Assignee shall have greater rights or
remedies under federal law, in which case such choice of New York law shall not
be deemed to deprive Assignee of such rights and remedies as may be available
under federal law.
SECTION 14 AMENDMENT. This Agreement shall not be amended except by
the written agreement of the parties.
SECTION 15 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
all applicable laws and regulations. If, however, any provision of this
Agreement shall be prohibited by or invalid under any such law or regulation in
any jurisdiction, it shall, as to such jurisdiction, be deemed modified to
conform to the minimum requirements of such law or regulation, or, if for any
reason it is not deemed so modified, it shall be ineffective and invalid only to
the extent of such prohibition or invalidity without affecting the remaining
provisions of this Agreement, or the validity or effectiveness of such provision
in any other jurisdiction.
SECTION 16 COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute but one and the same agreement.
SECTION 17 TERMINATION. Upon payment and performance in full of all
Obligations, this Agreement shall terminate and Assignee shall promptly execute
and deliver to Assignor such documents and instruments reasonably requested by
Assignor as shall be necessary to evidence termination of all security interests
given by Assignor to Assignee hereunder, including cancellation of this
Agreement by written notice from Assignee to the PTO; PROVIDED, HOWEVER, that
the obligations of Assignor under Section 11 hereof shall survive such
termination.
SECTION 18 SECURITY AGREEMENT. Assignor acknowledges that the rights
and remedies of Assignee with respect to the security interests in the
Intellectual Property Collateral granted hereby are more fully set forth in the
Security Agreement [and the other Documents] and all such rights and remedies
are cumulative.
SECTION 19 NO INCONSISTENT REQUIREMENTS. Assignor acknowledges that
this Agreement and the Security Agreement may contain covenants and other terms
and provisions variously stated regarding the same or similar matters, and the
Assignor agrees that all such covenants, terms and provisions are cumulative and
all shall be performed and satisfied in accordance with their respective terms.
7.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, as of the date first above written.
NORTH AMERICAN VACCINE, INC.
By /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------
Title: Vice President Finance
00000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Vice President Finance
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Fax: (000) 000-0000
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[*]
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* Confidential treatment requested.
8.
STATE OF CALIFORNIA )
) ss
COUNTY OF ____________________________)
On ___________ , before me, _____________, Notary Public, personally
appeared ___________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------
Signature
[SEAL]
9.
STATE OF CALIFORNIA )
) ss
COUNTY OF _________________)
On ___________ , before me, _____________, Notary Public, personally
appeared ___________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
-------------------------------
Signature
[SEAL]
10.
SCHEDULE A
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PATENTS AND PATENT APPLICATIONS OF ASSIGNOR
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ISSUED U.S. PATENTS
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Method for the High Level Blake, et al. NVX 08/798,760 February 11, 1997 Notice of
Expression, Purification and (co-exclusive (Notice of Allowance Allowance issued
Refolding of the Outer Membrane license with PMC) issued Jan. 1999) January 1999
Group B Porin Proteins (fee paid April
1999)
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Method for the High Level Blake, et al. NVX & Rockefeller 5,439,808 August 8, 1995 Patent
Expression, Purification and University
Refolding of the Outer Membrane (co-exclusive
Group B Porin Proteins from license with PMC)
Neisseria Meningitidis
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Method for the High Level Blake, et al. NVX 5,747,287 May 5, 1998 Patent
Expression, Purification and (co-exclusive
Refolding of the Outer Membrane license with PMC)
Group B Porin Proteins from
Neisseria Meningitidis
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Group A Streptococcal Blake et al. NVX & Rockefeller 5,866,135 February 2, 1999 Patent
Polysaccharide Immunogenic University
Compositions and Methods
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Method for the High Level Blake, et al. NVX 5,879,686 March 9, 1999 Patent
Expression, Purification and (co-exclusive
Refolding of the Outer Membrane license with PMC)
Group B Porin Proteins from
Neisseria Meningitidis
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U.S. PATENT APPLICATIONS
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[*] Tai, et al. NVX 08/096,181 July 23, 1993 Application
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[*] Tai, et al. NVX 08/449,358 May 24, 1995 Application
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[*] Xxxxxx, xx.xx. NVX 08/481,883 June 7, 1995 Application
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[*] Xxxxxx, D'Ambra NVX 08/753,242 November 22, 1996 Application
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[*] Tai, Blake NVX 08/923,992 September 5, 1997 Application
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[*] Xxxxxx, xx.xx. NVX 09/025,225 February 18, 1998 Application
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[*] Blake, et al. NVX 09/118/180 July 17, 1998 Application
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[*] Xxxxxxx, et al. NVX 09/120,044 July 21,1998 Application
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[*] Blake et al. NVX & Rockefeller 09/207,188 December 8, 1998 Application
University
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[*] Xxxxxx, Xxxxx NVX 09/221,620 December 23, 1998 Application
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[*] Xxxx-Xxxx, Xxxxx NVX 09/399,220 September 17, 1999 Application
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[*] Xxxxxx et al. NVX 09/376,911 August 18, 1999 Application
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* Confidential treatment requested.
A-1.
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SCHEDULE B
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U.S. TRADEMARKS OF ASSIGNOR
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XXXX STATUS APPL NO./ APPL./REGIS. DATE OWNER OF RECORD
REGIS. NO.
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REGISTERED U.S. TRADEMARKS
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Globe Design Registered 1,932,111 October 31, 1995 North American Vaccine, Inc.
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AMVAX Registered 1,967,632 April 16, 1996 North American Vaccine, Inc.
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TRINAVACEL Registered 2,101,121 September 30, 1997 American Vaccine Corporation
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TRIVAX Registered 2,118,360 December 2, 1997 American Vaccine Corporation
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XXXX Registered 2,267,812 August 3, 1999 American Vaccine Corporation
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PENDING U.S. TRADEMARK APPLICATIONS
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THE IMPORTANCE OF OUR WORK Pending 75/190,826 October 29, 1996 American Vaccine Corporation
GROWS BIGGER EVERY DAY
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NEISVAC-C Pending Not Avail. August 26, 1999 American Vaccine Corporation
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NEISIVA Pending Not Avail. August 26, 1999 American Vaccine Corporation
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MENCIVA Pending Not Avail. August 26, 1999 American Vaccine Corporation
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B-1.
