INTELLECTUAL PROPERTY SECURITY AGREEMENT
Exhibit
10.3
INTELLECTUAL
PROPERTY SECURITY AGREEMENT (this “Agreement”), dated as of January 11, 2007, by
and among Alteon Inc., a Delaware corporation (“Alteon”), HaptoGuard, Inc., a
Delaware corporation (“HaptoGuard”) (Alteon and HaptoGuard sometimes referred to
as “Debtor”), and Xxxxx Bros Advisors, LLC, as Collateral Agent for the Secured
Parties (together with its successors and assigns in such capacity, the
“Collateral Agent”).
W
I T N E
S S E T H:
WHEREAS,
pursuant to a Convertible Note and Warrant Purchase Agreement, dated the date
hereof, between Alteon and the Collateral Agent (the “Purchase Agreement”),
Alteon has agreed to issue to the Collateral Agent and the Collateral Agent
has
agreed to purchase from Alteon certain of Alteon’s Convertible Secured Notes
(the “Notes”), and warrants to purchase shares of Alteon’s Common Stock, $0.01
par value per share as described in the Purchase Agreement.
WHEREAS,
in order to induce the Lenders (as defined in the Purchase Agreement) to
purchase the Notes, each Debtor has agreed to execute and deliver to the
Collateral Agent for the benefit of the Secured Parties (as defined in the
Security Agreement) that certain Security Agreement dated the date hereof for
the benefit of the Collateral Agent and the Secured Parties in which each Debtor
has, among other things, granted to the Collateral Agent a security interest
in
the Collateral (as defined in the Security Agreement) including a security
interest in the all United States and foreign patents and certificates of
invention, or similar industrial property rights, and applications for any
of
the foregoing, including, without limitation: (i) each patent and patent
application referred to in Schedule
I
hereto,
(ii) all reissues, divisions, continuations, continuations-in-part, extensions,
renewals, and reexaminations thereof, (iii) all rights corresponding thereto
throughout the world, (iv) all inventions and improvements described therein,
(v) all rights to xxx for past, present and future infringements thereof, (vi)
all licenses, claims, damages, and proceeds of suit arising therefrom, and
(vii)
all Proceeds of the foregoing, including, without limitation, licenses,
royalties, income, payments, claims, damages, and proceeds of suit (collectively
the “Patent Collateral”) and all United States, and foreign trademarks, trade
names, corporate names, company names, business names, fictitious business
names, Internet domain names, service marks, certification marks, collective
marks, logos, other source or business identifiers, designs and general
intangibles of a like nature, all registrations and applications for any of
the
foregoing including, without limitation: (i) the registrations and applications
referred to in Schedule
II,
(ii)
all extensions or renewals of any of the foregoing, (iii) all of the goodwill
of
the business connected with the use of and symbolized by the foregoing, (iv)
the
right to xxx for past, present and future infringement or dilution of any of
the
foregoing or for any injury to goodwill, and (v) all Proceeds of the foregoing,
including, without limitation, licenses, royalties, income, payments, claims,
damages, and proceeds of suit (collectively, the “Trademark Collateral” and
together with the Patent Collateral the “IP Collateral.”to secure the payment
and performance of all of the Obligations (as defined in the Security
Agreement);
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NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Borrower and the Collateral Agent agree
as
follows:
1. Each
Debtor hereby grants to the Collateral Agent, for the benefit of the Collateral
Agent, a continuing security interest in (i) all of such Debtor’s right, title
and interest in and to the IP Collateral, (ii) the right (but not the
obligation) to xxx or bring like proceedings in the name of such Debtor or
in
the name of the Collateral Agent for past, present and future infringements
of
the IP Collateral and (iii) all rights (but not obligations) corresponding
thereto in the United States and any foreign country. Each Debtor hereby further
acknowledges and affirms that the rights and remedies of the Collateral Agent
with respect to the security interest in the IP Collateral are more fully set
forth in the Security Agreement, the terms and provisions of which are
incorporated by reference herein as if fully set forth herein.
2. All
notices, demands, consents, statements, requests, approvals or other
communications which are permitted or required to be given by either party
to
the other hereunder shall be in writing and shall be given as provided in
Section 11 of the Purchase Agreement.
3. This
Agreement cannot be modified, changed or discharged except by an agreement
in
writing signed by each Debtor and the Collateral Agent.
4. This
Agreement shall be construed and enforced in accordance with the laws of the
State of New York.
5. This
Agreement is subject in all respects to the Security Agreement, the terms of
which are incorporated herein by this reference.
6. The
security interests created hereunder and under the Security Agreement in the
IP
Collateral shall cease and be released in accordance with the terms of the
Security Agreement and the Purchase Agreement.
7. If
any
provision hereof conflicts with any provision of the Security Agreement, the
terms of the Security Agreement shall control to the extent of such
inconsistency.
8. Each
Debtor and the Collateral Agent hereby request that the Commissioner of Patents
and Trademarks record this Agreement with respect to the applicable IP
Collateral.
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9.
Authorization to Supplement. If any Debtor shall obtain rights to any additional
patent application, patent, trademark or trademark application or for any
reissue, division, or continuation, of any patent or trademark, the provisions
of this Agreement shall automatically apply thereto. Each Debtor shall give
prompt notice in writing to Collateral Agent with respect to any such new patent
rights. Without limiting the Debtors’ obligations under this Xxxxxxx 0, Xxxxxx
authorizes Collateral Agent unilaterally to modify this Agreement by amending
Schedules I and II respectively to include any such new patent rights or
trademark rights. Notwithstanding the foregoing, no failure to so modify this
Agreement or amend Schedule I or II shall in any way affect, invalidate or
detract from Collateral Agent's continuing security interest in all Collateral,
whether or not listed on Schedule I or II.
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IN
WITNESS WHEREOF, each Debtor and Collateral Agent have caused this Intellectual
Property Security Agreement to be duly executed and delivered as of the day
and
year first above written.
DEBTORS:
ALTEON
INC.
By:
_/s/
Noah Berkowitz____________________
Name:
Xxxx Xxxxxxxxx
Title:
President and Chief Executive Officer
HAPTOGUARD,
INC.
By:
_/s/
Noah Berkowitz____________________
Name:
Xxxx Xxxxxxxxx
Title:
President
COLLATERAL
AGENT:
XXXXX
BROS. ADVISORS, LLC
By: _/s/
Xxxxx Baker___________________
Name:
Xxxxx Xxxxx, Ph.D.
Title:
Managing Member
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SCHEDULE
I
PATENTS
AND PATENT APPLICATIONS
See
Attached.
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SCHEDULE
II
TRADEMARKS
AND TRADEMARK APPLICATIONS
See
Attached.
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