EXHIBIT 4.3(f)
ANNEX V
TO
NOTE PURCHASE
AGREEMENT
PATENT AND TRADEMARK SECURITY AGREEMENT
This PATENT AND TRADEMARK SECURITY AGREEMENT dated as of the 1st day of
March 1999, made by Cephalon Inc., a Delaware corporation, ("Grantor") to Delta
Opportunity Fund, Ltd., as collateral agent (in such capacity, the "Collateral
Agent") on behalf of the Holders.
WITNESSETH
WHEREAS, Grantor and the Buyers are parties to certain Note Purchase
Agreements, dated as of February 24, 1999 (as from time to time amended or
supplemented, the "Note Purchase Agreements"), pursuant to which, among other
things, the Buyers have agreed to purchase $30,000,000 aggregate principal
amount of 11% Revenue Sharing Senior Secured Notes due 2002 (the "Notes");
WHEREAS, it is a condition precedent to the several obligations of the
Buyers to purchase their respective Notes that the Grantor shall have executed
and delivered this Patent and Trademark Security Agreement to the Collateral
Agent for the ratable benefit of the Holders;
WHEREAS, Grantor has certain right, title and interest in certain U.S.
patents and patent applications and U.S. trademarks;
WHEREAS, Grantor wishes to grant to Collateral Agent a security
interest in all of its property and assets to secure the performance of its
obligations under the Notes;
WHEREAS, the Grantor is contemporaneously entering into a Security
Agreement with the Collateral Agent for the ratable benefit of the Holders;
NOW, THEREFORE, in consideration of the premises and to induce the
Buyers to purchase their respective Notes, the Grantor hereby agrees with the
Collateral Agent, for the ratable benefit of the Holders, as follows:
TERMS
1. Defined Terms. Unless otherwise defined herein, capitalized terms
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used herein
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which are defined in the Notes are so used as so defined, and the meanings
assigned to terms defined herein or in the Notes shall be equally applicable to
both the singular and plural forms of such terms and shall have the following
meanings:
"Buyer" means any one of the several buyers party to a Note Purchase
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Agreement.
"Code" means the Uniform Commercial Code as from time to time in effect
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in the Commonwealth of Pennsylvania.
"Collateral" shall have the meaning assigned to it in Section 2 of this
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Patent and Trademark Security Agreement.
"Event of Default" means:
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(1) the failure by the Grantor to perform in any material respect any
obligation of the Grantor under this Patent and Trademark Security Agreement as
and when required by this Patent and Trademark Security Agreement; or
(2) any representation and warranty made by the Grantor pursuant to
this Patent and Trademark Security Agreement shall have been untrue in any
material respect when made;
(3) the failure by the Grantor to perform in any material respect any
obligation of the Grantor under the Security Agreement as and when required by
the Security Agreement;
(4) any representation and warranty made by the Grantor pursuant to the
Security Agreement shall have been untrue in any material respect when made; or
(5) any Event of Default, as that term is defined in any of the Notes.
"General Intangibles" shall have the meaning ascribed to it in the
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Uniform Commercial Code in effect in the Commonwealth of Pennsylvania on the
date hereof.
"Holder" means any Buyer or any holder from time to time of any Note.
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"Lien" shall mean any lien, mortgage, security interest, chattel
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mortgage, pledge or other encumbrance (statutory or otherwise) of any kind
securing satisfaction or performance of an obligation, including any agreement
to give any of the foregoing, any conditional sales or other title retention
agreement, any lease in the nature thereof, and the filing of or the agreement
to give any financing statement under the Code of any jurisdiction or similar
evidence of any encumbrance, whether within or outside the United States.
"Obligations" shall mean:
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(1) the full and prompt payment when due of all obligations
and liabilities to the Holders, whether now existing or hereafter arising, under
the Notes, this Agreement or the other Transaction Documents and the due
performance and compliance with the terms of the Notes and the other Transaction
Documents;
(2) any and all sums advanced by the Collateral Agent or any
Holder in order to preserve the Collateral or to preserve the Collateral Agent's
security interest in the Collateral; and
(3) in the event of any proceeding for the collection or
enforcement of any obligations or liabilities of the Grantor referred to in the
immediately preceding clauses (1) through (2) in accordance with the terms of
the Notes and this Agreement, the reasonable expenses of re-taking, holding,
preparing for sale, selling or otherwise disposing of or realizing on the
Collateral, or of any other exercise by the Collateral Agent of its rights
hereunder, together with reasonable attorneys' fees and court costs.
"Patent and Trademark Security Agreement" means this Patent and
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Trademark Security Agreement, as amended, supplemented or otherwise modified
from time to time.
"Patent Licenses" means the license agreements, as amended, identified
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in Exhibit A hereto as it may be amended, supplemented or otherwise modified
from time to time.
"Patent(s)" means all U.S. patents and patent applications, including
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any and all extensions, reissues, substitutes, continuations,
continuations-in-part, patents of addition, and renewals thereof, and patents
issuing therefrom, as necessary to use and sell modafinil to make, have made,
use or sell pharmaceutical compositions containing modafinil (the
"Pharmaceutical Compositions") in the United States, its territories and
possessions, and conveyed by a Patent License as such Patent License may be
amended, supplemented or otherwise modified from time to time. The term shall
also include U.S. Patent 5,618,845 entitled "Acetamide Derivative Having Defined
Particle Size," specifically identified in Exhibit B hereto, including any and
all extensions, reissues, substitutes, continuations, continuations in part,
patents of addition, and renewals thereof.
"Proceeds" shall have the meaning ascribed to it in the Uniform
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Commercial Code in effect in the Commonwealth of Pennsylvania on the date
hereof.
"Security Agreement" means that certain Security Agreement, dated as of
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March 1, 1999, between the Grantor and the Collateral Agent.
"Trademark License" means the license agreement, as amended, identified
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in Exhibit C hereto as it may be amended, supplemented or otherwise modified
from time to time.
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"Trademarks" means (a) all U.S. trademarks, trade names, corporate
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names, company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers of the Grantor
adopted for use in conjunction with the sale of Phamaceutical Compositions, now
existing in the United States or hereinafter adopted or acquired, whether
currently in use or not, and the goodwill associated therewith, all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, that identified in Exhibit C hereto as
being conveyed under the Trademark License as it may be amended, supplemented or
otherwise modified from time to time, and (b) all renewals thereof.
2. Grant of Security Interest. As collateral security for the prompt
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and complete payment and performance when due of the Obligations, the Grantor
hereby grants to the Collateral Agent, for the ratable benefit of the Holders, a
continuing first priority security interest in all of the following property now
owned or at any time hereafter acquired by the Grantor or in which the Grantor
now has or at any time in the future may acquire right, title or interest
(collectively, the "Collateral"):
All General Intangibles and Proceeds arising from all Patents, all
Patents Licenses, all Trademarks and all Trademark Licenses; all Patents; all
Patent Licenses; all Trademarks; all Trademark Licenses; to the extent not
otherwise included, all proceeds and products of any and all of the foregoing.
3. Representations and Warranties. The Grantor hereby represents and
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warrants that:
(a) Title; No Other Liens. Except for the Lien granted to the
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Collateral Agent for the ratable benefit of the Holders pursuant to this Patent
and Trademark Security Agreement and the Lien granted to the Collateral Agent
for the ratable benefit of the Holders pursuant to the terms of the Security
Agreement, the Grantor owns each item of the Collateral free and clear of any
and all Liens or claims of others except as permitted by Section 3.9 of the
Notes. No security agreement, financing statement or other public notice with
respect to all or any part of the Collateral is on file or of record in any
public office, except such as may have been filed in favor of the Collateral
Agent, for the ratable benefit of the Holders, pursuant to this Patent and
Trademark Security Agreement or the Security Agreement.
(b) Perfected First Priority Liens. The Liens granted pursuant to this
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Patent and Trademark Security Agreement will constitute upon the completion of
all the filings or notices listed in Exhibit D hereto, which Exhibit includes
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all UCC-1 financing statements to be filed pursuant to the terms of the Security
Agreement and all requisite filings to be made with the U.S. Patent and
Trademark Office in the form substantially similar to that of Exhibit F and
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Exhibit G, perfected Liens on all Collateral, which are prior to all other Liens
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on such Collateral and which are enforceable as such against all creditors of
the Grantor.
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(c) Consents. No consent (other than consents that have been obtained)
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of any party (other than the Grantor) to any Contract that constitutes part of
the Collateral is required, or purports to be required, in connection with the
execution, delivery and performance of this Patent and Trademark Security
Agreement.
(d) Chief Executive Office. The Grantor's chief executive office and
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chief place of business is located at 000 Xxxxxxxxxx Xxxxxxx, Xxxx Xxxxxxx,
Xxxxxxxxxxxx 00000.
(e) Authority. The Grantor has full power, authority and legal right to
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enter into this Patent and Trademark Security Agreement and to grant the
Collateral Agent the Lien on the Collateral pursuant to this Patent and
Trademark Security Agreement.
(f) Due Execution and Delivery. This Patent and Trademark Security
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Agreement has been duly executed and delivered by the Grantor and constitutes a
legal, valid and binding obligation of the Grantor enforceable in accordance
with its terms.
(g) No Violation. The execution, delivery and performance of this
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Patent and Trademark Security Agreement will not violate any provision of any
applicable law or regulation or of any order, judgment, writ, award or decree of
any court, arbitrator or governmental authority, domestic or foreign, or of any
securities issued by the Grantor, or of any mortgage, indenture, lease, contract
or other agreement, instrument or undertaking to which the Grantor is a party or
which purports to be binding upon the Grantor or upon any of its assets and will
not result in the creation or imposition of any Lien on any of the assets of the
Grantor except as contemplated by this Patent and Trademark Security Agreement.
(h) No Consent or Approval. No consent, filing, approval,
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registration, recording, registration or other action is required (x) for the
grant by the Grantor of the Lien on the Collateral pursuant to this Patent and
Trademark Security Agreement or for the execution, delivery or performance of
this Patent and Trademark Security Agreement by the Grantor, or (y) to perfect
the Lien purported to be created by this Agreement, in each case except as
contemplated by Section 3(b) above.
4. Covenants. The Grantor covenants and agrees with the Collateral
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Agent that from and after the date of this Patent and Trademark Security
Agreement until the payment or performance in full by the Grantor of all of its
obligations under the Transaction Documents:
(a) Further Documentation. At any time and from time to time, upon the
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written request of the Collateral Agent, and at the sole expense of the Grantor,
the Grantor will promptly and duly execute and deliver such further instruments
and documents and take such further action as the Collateral Agent may request
for the purpose of obtaining or preserving the full benefits of this Patent and
Trademark Security Agreement and of the rights and powers herein granted,
including, without limitation, the filing of any financing or continuation
statements under the Code in effect in any such jurisdiction with respect to the
Liens created hereby. The Grantor also
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hereby authorizes the Collateral Agent to file any such financing or
continuation statement without the signature of the Grantor to the extent
permitted by applicable law. A carbon, photographic or other reproduction of
this Patent and Trademark Security Agreement shall be sufficient as a financing
statement for filing in any jurisdiction.
(b) Indemnification. The Grantor agrees to pay, and to save the
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Collateral Agent and each Holder harmless from, any and all liabilities, costs
and expenses (including, without limitation, legal fees and expenses) (i) with
respect to, or resulting from, any delay in paying, any and all excise, sales or
other taxes which may be payable or determined to be payable with respect to any
of the Collateral, (ii) with respect to, or resulting from, any delay by Grantor
in complying with any law or regulation applicable to any of the Collateral or
(iii) in connection with this Patent and Trademark Security Agreement or any
action taken by the Collateral Agent or any Holder in exercising its rights
hereunder.
(c) Maintenance of Records. The Grantor will keep and maintain at its
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own cost and expense satisfactory and complete records of the Collateral. For
the further security of the Holders, the Grantor hereby grants to the Collateral
Agent, for the ratable benefit of the Holders, a security interest in all of the
Grantor's books and records pertaining to the Collateral, and the Grantor shall
turn over any such books and records for inspection at the office of the Grantor
to the Collateral Agent or to its representatives during normal business hours
at the request of the Collateral Agent.
(d) Limitation on Liens on Collateral. The Grantor (x) will not create,
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incur or permit to exist, will defend the Collateral against, and will take such
other action as is necessary to remove, any Lien or claim on or to the
Collateral, other than the Liens created hereby or as permitted by Section 3.9
of the Notes, and (y) will defend the right, title and interest of the
Collateral Agent in and to any of the Collateral against the claims and demands
of all persons whomsoever.
(e) Limitations on Dispositions of Collateral. The Grantor will not
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sell, transfer, assign, or sublicense any of the Collateral, or attempt, offer
or contract to do so including, but not limited to, marketing and promotion
thereof, or otherwise agreed to by the parties in writing.
(f) Limitations on Modifications, Waivers, Extensions of Trademark
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Licenses. Except in the ordinary course of business, the Grantor will not (i)
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amend, modify, terminate or waive any provision of the Trademark License with
respect to the Trademark in any manner which could reasonably be expected to
materially adversely affect the value of such Trademark License as Collateral,
(ii) fail to exercise promptly and diligently each and every material right
which it may have under each Trademark License with respect to any Trademarks.
Additionally, the Grantor will deliver to the Collateral Agent a copy of each
material demand, notice or document received by it relating in any way to such
Trademark License.
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(g) Further Identification of Collateral. The Grantor will furnish to
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the Collateral Agent from time to time, upon the request of the Collateral
Agent, statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Collateral Agent may reasonably request, all in reasonable detail.
(h) Notices. The Grantor will advise the Collateral Agent promptly, in
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reasonable detail, at its address set forth in accordance with Section 15, (i)
of any Lien on, or claim asserted against, any of the Collateral, other than as
created hereby or as permitted hereby, and (ii) of the occurrence of any other
event which could reasonably be expected to have a material adverse effect on
the Liens created hereunder.
(i) Patents.
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(i) The Grantor will notify the Collateral Agent immediately
if it knows, of has reason to know, that any application relating to
any Patent may become abandoned or of any adverse determination or
development (including, without limitation, the institution of, or any
such determination or development in, any proceeding in the United
States Patent and Trademark Office or any court or tribunal in any
country) regarding the Grantor's ownership of any Patent.
(ii) The Grantor will, with respect to any Patent that the
Grantor obtains after the Issuance Date or any Patent License that the
Grantor acquires after the Issuance Date, promptly (i) take all actions
necessary so that the Collateral Agent shall obtain a perfected
security interest in such Patent or Patent License and (ii) provide to
the Collateral Agent a revised Exhibit A and Exhibit B, listing all
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Patents and all Patent Licenses in which Grantor has an interest.
(iii) Upon request of the Collateral Agent, the Grantor shall
execute and deliver any and all agreements, instruments, documents, and
papers as the Collateral Agent may request to evidence the Collateral
Agent's security interest in such Patents or Patent Licenses, and the
Grantor hereby constitutes the Collateral Agent its attorney-in-fact to
execute and file all such writings for the foregoing purposes, all acts
of such attorney being hereby ratified and confirmed; such power being
coupled with an interest is irrevocable until the Grantor shall have
paid and performed in full all of its obligations under this Patent and
Trademark Security Agreement and the Security Agreement.
(iv) Subject to the terms of the Patent License, if applicable,
the Grantor will take all reasonable and necessary steps, including,
without limitation, in any proceeding before the United States Patent
and Trademark Office, to maintain and pursue each Patent including,
without limitation, payment of maintenance fees.
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(v) Subject to the terms of the Patent License, if applicable,
in the event that any Patent included in the Collateral is infringed by
a third party, the Grantor shall promptly notify the Collateral Agent
after it learns thereof and shall, if appropriate, xxx for
infringement, seeking injunctive relief where appropriate and to
recover any and all damages for such infringement, or take such other
actions as the Grantor shall reasonably deem appropriate under the
circumstances to protect such Patent.
(j) Trademarks.
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(i) The Grantor (either itself or through licensees) will,
with respect to each Trademark identified in Exhibit C hereto as it may
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be amended, supplemented or otherwise modified from time to time, (i)
continue to use or have used such Trademark to the extent necessary to
maintain such Trademark in full force free from any claim of
abandonment for non-use, (ii) maintain as in the past the quality of
products and services offered under such Trademark, (iii) employ such
Trademark with the appropriate notice of registration, (iv) not adopt
or use any xxxx which is confusingly similar or a colorable imitation
of such Trademark unless the Collateral Agent, for the ratable benefit
of the Holders, shall obtain a first priority perfected security
interest in the Company's interest in such xxxx pursuant to this Patent
and Trademark Security Agreement, and (v) not (and not permit any
licensee or sublicensee thereof to) do any act or knowingly omit to do
any act whereby any such Trademark may become invalidated.
(ii) The Grantor will promptly notify the Collateral Agent if
any application or registration relating to any Trademark may become
abandoned, canceled or dedicated, or of any adverse determination or
development (including, without limitation, the institution of, or any
such determination or development in, any proceeding in the United
States Patent and Trademark Office or any court or tribunal in any
country) regarding the Grantor's ownership interest in such Trademark
or its right to register the same or to keep and maintain the same.
(iii) The Grantor will, with respect to any Trademark that the
Grantor registers after the Closing Date or any Trademark License that
the Grantor acquires after the Closing Date, promptly (i) take all
actions necessary so that the Collateral Agent, for the ratable benefit
of the Holders, shall obtain a perfected security interest in such
Trademark or Trademark License and (ii) provide to the Collateral Agent
a revised listing of all registered Trademarks and all Trademark
Licenses in which the Grantor has an interest.
(iv) Upon request of the Collateral Agent, the Grantor shall
execute and deliver any and all agreements, instruments, documents, and
papers as the Collateral Agent may request to evidence the Collateral
Agent's security interest in any Trademark and the goodwill and general
intangibles of the Grantor relating thereto or represented thereby, and
the Grantor hereby constitutes the Collateral Agent its
attorney-in-fact to execute and
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file all such writings for the foregoing purposes, all acts of such
attorney being hereby ratified and confirmed; such power being coupled
with an interest is irrevocable until the Grantor shall have paid and
performed in full all of its obligations under the Transaction
Documents.
(v) Subject to the terms of the Trademark License, the Grantor
will take all reasonable and necessary steps, including, without
limitation, in any proceeding before the United States Patent and
Trademark Office to maintain and pursue each application (and to obtain
the relevant registration) and to maintain the registration of the
Trademarks, including, without limitation, filing of applications for
renewal, affidavits of use and affidavits of incontestability.
(vi) Subject to the terms of the Trademark License, in the
event that any Trademark included in the Collateral is infringed,
misappropriated or diluted by a third party, the Grantor shall notify
the Collateral Agent and shall, if appropriate, xxx for infringement,
misappropriation or dilution, seeking injunctive relief where
appropriate and to recover any and all damages for such infringement,
misappropriation or dilution, or take such other action as the Grantor
reasonably deems appropriate under the circumstances to protect such
Trademark.
(k) License Agreements. The Grantor shall comply with its obligations
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under each of its Patent Licenses and Trademark Licenses.
(l) Changes in Locations, Name, Etc. The Grantor will not (i) change
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the location of its chief executive office/chief place of business from that
specified in Section 3(d) or (ii) change its name, identity or corporate
structure to such an extent that any statement filed by the Collateral Agent
with the Patent and Trademark Office in connection with this Patent and
Trademark Security Agreement would become misleading, unless it shall have given
the Collateral Agent at least 30 days prior written notice thereof and, prior to
such action or event, shall have taken appropriate action to preserve and
protect the Collateral Agent's security interest under this Patent and Trademark
Security Agreement.
5. Collateral Agent's Appointment as Attorney-in-Fact.
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(a) Powers. The Grantor hereby irrevocably constitutes and appoints the
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Collateral Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Grantor and in the name of the
Grantor or in its own name, from time to time in the Collateral Agent's
discretion, during any period in which an Event of Default is continuing, for
the purpose of carrying out the terms of this Patent and Trademark Security
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Patent and Trademark Security Agreement, and,
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without limiting the generality of the foregoing, the Grantor hereby gives the
Collateral Agent the power and right, on behalf of the Grantor, without notice
to or assent by the Grantor, except any notice required by law, to do the
following:
(i) to take possession of and endorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under or with respect to any Collateral and to file any
claim or to take any other action or proceeding in any court of law or
equity or otherwise deemed appropriate by the Collateral Agent for the
purpose of collecting any and all such moneys due under or with respect
to any such Collateral whenever payable, in each case in the name of
the Grantor or its own name, or otherwise;
(ii) to pay or discharge taxes and Liens levied or placed on
or threatened against the Collateral and to pay all or any part of the
premiums therefor and the costs thereof; and
(iii) (A) to direct any party liable for any payment under any
of the Collateral to make payment of any and all moneys due or to
become due thereunder directly to the Collateral Agent or as the
Collateral Agent shall direct; (B) to ask or demand for, collect,
receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising
out of any Collateral; (C) to sign and endorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts
against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral; (D) to commence and
prosecute any suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral or any
thereof and to enforce any other right in respect of any Collateral;
(E) to defend any suit, action or proceeding brought against the
Grantor with respect to any Collateral; (F) to settle, compromise or
adjust any suit, action or proceeding described in clause (E) above
and, in connection therewith, to give such discharges or releases as
the Collateral Agent may deem appropriate; (G) to assign (along with
the goodwill of the business pertaining thereto) any Patent or
Trademark in the U.S. for such term or terms, on such conditions, and
in such manner, as the Collateral Agent shall in its sole discretion
determine; and (H) generally, to sell, transfer, pledge and make any
agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Collateral Agent were the
absolute owner thereof for all purposes, and to do, at the Collateral
Agent's option and the Grantor's expense, at any time, or from time to
time, all acts and things which the Collateral Agent deems necessary to
protect, preserve or realize upon the Collateral and the Collateral
Agent's Liens thereon and to effect the intent of this Patent and
Trademark Security Agreement, all as fully and effectively as the
Grantor might do.
The Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevo cable until
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the Grantor shall have paid and performed in full all of its obligations under
this Patent and Trademark Security Agreement, the Note and the Security
Agreement.
(b) Other Powers. The Grantor also authorizes the Collateral Agent, at
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any time and from time to time, to execute, in connection with the sale provided
for herein, any endorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral.
(c) No Duty on Collateral Agent's Part. The powers conferred on the
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Collateral Agent hereunder are solely to protect the Collateral Agent's
interests in the Collateral and shall not impose any duty upon the Collateral
Agent to exercise any such powers. The Collateral Agent shall be accountable
only for amounts that it actually receives as a result of the exercise of such
powers, and neither it nor any of its officers, directors, employees or agents
shall be responsible to the Grantor for any act or failure to act hereunder,
except for their own gross negligence or willful misconduct.
6. Performance by Collateral Agent of Grantor's Obligations. If the
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Grantor fails to perform or comply with any of its agreements contained herein
and the Collateral Agent, as provided for by the terms of this Patent and
Trademark Security Agreement and following reasonable notice to the Grantor,
shall itself perform or comply, or otherwise cause performance or compliance,
with such agreement, the expenses of the Collateral Agent incurred in connection
with such performance or compliance shall be payable by the Grantor to the
Collateral Agent on demand and shall constitute Obligations secured hereby.
7. Remedies. If Event of Default has occurred and is continuing, the
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Collateral Agent may exercise, in addition to all other rights and remedies
granted to them in this Patent and Trademark Security Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations, all
rights and remedies of a secured party under the Code. Without limiting the
generality of the foregoing, if an Event of Default has occurred and is
continuing, the Collateral Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below or expressly provided for) to or upon the
Grantor or any other Person (all and each of which demands, defenses,
advertisements and notices are, to the extent permitted by applicable law,
hereby waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, license, assign, give option or options to purchase, or
otherwise dispose of and deliver the Collateral or any part thereof (or contract
to do any of the foregoing), at public or private sale or sales, at any
exchange, broker's board or office of the Collateral Agent or elsewhere upon
such terms and conditions as it may deem advisable and at such prices as it may
deem best, for cash or on credit or for future delivery without assumption of
any credit risk. The Collateral Agent shall have the right upon any such public
sale or sales, and, to the extent permitted by law, upon any such private sale
or sales, to purchase the whole or any part of the Collateral so sold, free of
any right or equity of redemption in the Grantor, which right or equity is
hereby waived, to the extent permitted by applicable law,
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or released.
The Grantor further agrees, if an Event of Default has occurred and is
continuing, and at the Collateral Agent's request, to assemble the Collateral
and make it available to the Collateral Agent at places which the Collateral
Agent shall reasonably select, whether at the Grantor's premises or elsewhere.
The Collateral Agent shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred therein or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Collateral Agent hereunder, including, without
limitation, reasonable attorneys' fees and disbursements, to the payment in
whole or in part of the Obligations, in such order as the Collateral Agent may
elect, and only after such application and after the payment by the Collateral
Agent of any other amount required by any provision of law, need the Collateral
Agent account for the surplus, if any, to the Grantor. To the extent permitted
by applicable law, the Grantor waives all claims, damages and demands it may
acquire against the Collateral Agent arising out of the exercise by it of any
rights hereunder, provided, that nothing contained in this Section shall relieve
the Collateral Agent from liability arising solely from its gross negligence or
willful misconduct. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least ten (10) days before such sale or other disposition.
The Grantor shall remain liable for any deficiency if the proceeds of any sale
or other disposition of the Collateral are insufficient to pay the Obligations
and the fees and disbursements of any attorneys employed by the Collateral Agent
to collect such deficiency.
8. Limitation on Duties Regarding Preservation of Collateral. The
---------------------------------------------------------
Collateral Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the Code or otherwise, shall be to deal with it in the same manner as the
Collateral Agent deals with similar property for its own account. Neither the
Collateral Agent nor any of its directors, officers, employees or agents shall
be liable for failure to demand, collect or realize upon all or any part of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of the Grantor or
otherwise.
9. Powers Coupled with an Interest. All authorizations and agencies
-------------------------------
herein contained with respect to the Collateral are irrevocable and powers
coupled with an interest until Grantor has paid and performed in full all of its
obligations under the Transaction Documents.
10. Severability. Any provision of this Patent and Trademark Security
------------
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
-12-
11. Paragraph Headings. The paragraph headings used in this Patent and
------------------
Trademark Security Agreement are for convenience of reference only and are not
to affect the construction hereof or be taken into consideration in the
interpretation hereof.
12. No Waiver; Cumulative Remedies. The Collateral Agent shall not by
------------------------------
any act, delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any Event of Default or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Collateral Agent, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Collateral Agent of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy which
the Collateral Agent would otherwise have on any future occasion. The rights and
remedies herein and in the Notes provided are cumulative, may be exercised
singly or concurrently and are not exclusive of any rights or remedies provided
by law or in equity or by statute.
13. Waivers and Amendments; Successors and Assigns. None of the terms
----------------------------------------------
or provisions of this Patent and Trademark Security Agreement may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the party to be charged with enforcement; provided, however, that
any provision of this Patent and Trademark Security Agreement may be waived,
amended, supplemented or otherwise modified by the Collateral Agent only with
the prior written approval of the Majority Holders. This Patent and Trademark
Security Agreement shall be binding upon the successors and assigns of the
Grantor and shall inure to the benefit of the Collateral Agent and its
successors and assigns. The Grantor may not assign its rights or obligations
under this Agreement without the prior written consent of the Collateral Agent.
14. Termination of Security Interest; Release of Collateral. (a) Upon
-------------------------------------------------------
the payment and performance in full by the Grantor of its obligations under the
Transaction Documents, the security interest granted in the Collateral pursuant
to this Agreement (the "Security Interest") shall terminate and all rights to
the Collateral shall revert to the Grantor. At any time and from time to time
prior to such termination of the Security Interest, the Collateral Agent shall
release any of the Collateral with the prior written consent of the Majority
Holders.
(b) Upon any such termination of the Security Interest, the Collateral
Agent will, at the expense of the Grantor, execute and deliver to the Grantor
such documents and take such other actions as the Grantor shall reasonably
request to evidence the termination of the Security Interest and deliver to the
Grantor all Collateral so released then in its possession.
15. Notices. Any notices required or permitted to be given under the
-------
terms of this Agreement shall be in writing and shall be sent by mail, personal
delivery, telephone line
-13-
facsimile transmission or courier and shall be effective five days after being
placed in the mail, if mailed, or upon receipt, if delivered personally, by
telephone line facsimile transmission or by courier, in each case addressed to a
party at such party's address (or telephone line facsimile transmission number)
shown below or such other address (or telephone line facsimile transmission
number) as a party shall have provided by notice to the other party in
accordance with this provision. In the case of any notice to the Grantor, such
notice shall be addressed to the Grantor at, 000 Xxxxxxxxxx Xxxxxxx, Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000, President (telephone line facsimile transmission
number (000) 000-0000), and a copy shall also be given to: Xxxxxx, Xxxxx &
Xxxxxxx LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Xxxxx X. Xxxx, Esq. (telephone line facsimile transmission number (215) 963-
5299), and in the case of any notice to the Collateral Agent, such notice shall
be addressed to the Collateral Agent at, Delta Opportunity Fund c/o
International Fund Administration, Inc., 48 Par la Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxx XX00 Xxxxxxx, Xxxxxxxxx: Xx. Xxxxx Xxxx (telephone line facsimile
transmission number (000) 000-0000), and copies shall also be given to: Xxxx &
Xxxxxxx Advisors, LLC, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000
(telephone line facsimile transmission number (000)000-0000) and Law Offices of
Xxxxx X. Xxxxx, Penthouse Suite, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(telephone line facsimile transmission number (000) 000-0000).
16. Concerning Collateral Agent. The Grantor acknowledges that the
---------------------------
rights and responsibilities of the Collateral Agent under this Patent and
Trademark Security Agreement with respect to any action taken by the Collateral
Agent or the exercise or nonexercise by the Collateral Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Patent and Trademark Security Agreement shall,
as between the Collateral Agent and the Holders, be governed by Exhibit E hereto
---------
and by such other agreements with respect thereto as may exist from time to time
among them, but, as between the Collateral Agent and the Grantor, except as
expressly provided in Sections 12 and 13, the Collateral Agent shall be
conclusively presumed to be acting as agent for the Investors with full and
valid authority so to act or refrain from acting, and the Grantor shall not be
under any obligation to make any inquiry respecting such authority. The
Collateral Agent hereby waives for the benefit of the Holders any claim, right
or Lien of the Collateral Agent against the Collateral arising under applicable
law or arising from any business or transaction between the Collateral Agent and
the Grantor other than pursuant to this Patent and Trademark Security Agreement
or any of the other Transaction Documents.
17. Integration. This Patent and Trademark Security Agreement
-----------
represents the agreement of the Grantor and the Collateral Agent with respect to
the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Collateral Agent relative to subject matter
hereof not expressly set forth or referred to herein.
18. Governing Law. This Patent and Trademark Security Agreement and the
-------------
rights and obligations of the Grantor under this Patent and Trademark Security
Agreement shall be
-14-
governed by, and construed and interpreted in accordance with, the law of the
State of New York, except to the extent that under the New York Uniform
Commercial Code the laws of another jurisdiction govern matters of perfection
and the effect of perfection or non-perfection of any security interest granted
hereunder.
-15-
IN WITNESS WHEREOF, the Grantor has caused this Patent and
Trademark Security Agreement to be duly executed and delivered as of the date
first above written.
CEPHALON, INC.
By:______________________
Name:
Title:
ACKNOWLEDGED AND AGREED:
DELTA OPPORTUNITY FUND, LTD.
By: ______________________
-16-
STATE OF _____________ )
) ss.
COUNTY OF ____________ )
On this ___ day of February 1999, before me personally
appeared J. Xxxxx Xxxxx proved to me on the basis of satisfactory evidence to be
the person who executed the above Patent and Trademark Security Agreement as
Senior Vice President, Finance and Chief Financial Officer on behalf of
Cephalon, Inc., and acknowledged to me that the corporation executed it.
WITNESS my hand and official seal.
_______________________
NOTARY PUBLIC
STATE OF _____________ )
) ss.
COUNTY OF ___________ )
On this _____ day of February 1999, before me personally
appeared ________________ proved to me on the basis of satisfactory evidence to
be the person who executed the above Patent and Trademark Security Agreement as
_____________________ on behalf of Delta Opportunity Fund, Ltd., and
acknowledged to me that the corporation executed it.
WITNESS my hand and official seal.
______________________
NOTARY PUBLIC
-17-
EXHIBIT A : PATENT LICENSE AGREEMENT
--------- ------------------------
1. The License Agreement entered into by and between Laboratoire X. Xxxxx and
Cephalon, Inc. dated as of 20 January 1993, as amended. Rights were transferred
to certain patents and patent applications, including but not limited to, the
following:
ISSUED U.S. PATENTS
-------------------
-------------------------------------------------------------------------------------------------------------------
PATENT NO. TITLE ASSIGNEE ISSUE DATE
---------- ----- -------- ----------
-------------------------------------------------------------------------------------------------------------------
US 4,177,290 "Acetamide Derivatives" Laboratoire 12/4/79
X.Xxxxx
-------------------------------------------------------------------------------------------------------------------
US 4,927,855 "Levorotatory Isomer of Benzyhydrylsulfinyl Laboratoire 5/22/90
Derivatives" X.Xxxxx
-------------------------------------------------------------------------------------------------------------------
US 5,180,745 "Method for Providing a Neuroprotective Effect" Laboratoire 1/19/93
X.Xxxxx
-------------------------------------------------------------------------------------------------------------------
US unknown "Extrusion and Freeze-Drying Method for Preparing Laboratoire Allowed
Particles Containing an Active Ingredient" X.Xxxxx
-------------------------------------------------------------------------------------------------------------------
US 5,391,576 "Method for Treating and Protecting the Cerebral Laboratoire 2/21/95
Tissue Against Repercussions of Cerebral Ischaemia X.Xxxxx
and Cerebral Infarctions"
-------------------------------------------------------------------------------------------------------------------
US 5,401,776 "Use of Modafinil for the Treatment of Urinary and Laboratoire 3/28/95
Fecal Incontinence" X.Xxxxx
-------------------------------------------------------------------------------------------------------------------
US 5,612,379 "Modafinil for the Treatment of Sleep Apneas and Laboratoire 4/18/97
Ventilatory Disorders of Central Origin" X.Xxxxx
-------------------------------------------------------------------------------------------------------------------
A-18
-----------------------------------------------------------------------------------------------------------------
US 5,719,168 "Acetamide Derivatives and Their Use as Feeding Laboratoire L. 2/17/98
Behavior Modifiers" Xxxxx
-----------------------------------------------------------------------------------------------------------------
A-19
EXHIBIT B: CEPHALON PATENT
--------------------------
-----------------------------------------------------------------------------------------------------------------
US 5,618,845 "Acetamide Derivative Having Defined Particle Size" Cephalon, Inc. 4/8/97
-----------------------------------------------------------------------------------------------------------------
B-20
EXHIBIT C: TRADEMARK AGREEMENT
------------------------------
1. The License Agreement entered into by and between Genelco S.A. and
Cephalon, Inc. dated as of 20 January 1993, as amended. Rights were transferred
to a certain trademarks, including:
TRADEMARK U.S. REGISTRATION NUMBER REGISTRANT
--------- ------------------------ ----------
PROVIGIL 2,000,231 Genelco, S.A.
C-21
EXHIBIT D: FILINGS REQUIRED TO PERFECT SECURITY INTEREST
--------------------------------------------------------
1. Filing with the Patent and Trademark Office
2. Filing of UCC-1 Financing Statement with the Commonwealth of Pennsylvania
3. Filing of UCC-1 Financing Statement with the Prothonotary of Xxxxxxx
County, Pennsylvania
4. Filing of UCC-1 Financing Statement with the Commonwealth of Pennsylvania
5. Filing of UCC-1 Financing Statement with New Castle County, Delaware
D-22
EXHIBIT E: THE COLLATERAL AGENT
-------------------------------
1. Appointment. The Holders (all capitalized terms used in this
Exhibit C and not otherwise defined shall have the respective meanings provided
in the Patent and Trademark Security Agreement to which this Exhibit C is
attached (the "Patent and Trademark Security Agreement")), by their acceptance
of the benefits of the Patent and Trademark Security Agreement, hereby
irrevocably designate Delta Opportunity Fund, Ltd., as Collateral Agent to act
as specified herein and in the Patent and Trademark Security Agreement. Each
Buyer hereby irrevocably authorizes, and each other Holder of any Note by the
acceptance of such Note shall be deemed irrevocably to authorize, the Collateral
Agent to take such action on its behalf under the provisions of the Patent and
Trademark Security Agreement and any other instruments and agreements referred
to herein or therein and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of the
Collateral Agent by the terms hereof and thereof and such other powers as are
reasonably incidental thereto. The Collateral Agent may perform any of its
duties hereunder by or through its agents or employees.
2. Nature of Duties. The Collateral Agent shall have no duties or
responsibilities except those expressly set forth in the Patent and Trademark
Security Agreement. Neither the Collateral Agent nor any of its officers,
directors, employees or agents shall be liable for any action taken or omitted
by it as such under the Patent and Trademark Security Agreement or hereunder or
in connection herewith or therewith, unless caused by its or their gross
negligence or willful misconduct. The duties of the Collateral Agent shall be
mechanical and administrative in nature; the Collateral Agent shall not have by
reason of the Patent and Trademark Security Agreement or any other Transaction
Document a fiduciary relationship in respect of any Holder; and nothing in the
Patent and Trademark Security Agreement, expressed or implied, is intended to or
shall be so construed as to impose upon the Collateral Agent any obligations in
respect of the Patent and Trademark Security Agreement except as expressly set
forth herein.
The Collateral Agent shall not be liable for any act it may do or omit
to do while acting in good faith and in the exercise of its own best judgment.
Any act done or omitted by the Collateral Agent on the advice of its own
attorneys shall be deemed conclusively to have been done or omitted in good
faith. The Collateral Agent shall have the right at any time to consult with
counsel on any question arising under this Patent and Trademark Security
Agreement. The Collateral Agent shall incur no liability for any delay
reasonably required to obtain the advice of counsel.
3. Lack of Reliance on the Collateral Agent. Independently and
without reliance upon the Collateral Agent, each Holder, to the extent it deems
appropriate, has made and
E-23
shall continue to make (i) its own independent investigation of the financial
condition and affairs of the Grantor and its subsidiaries in connection with the
making and the continuance of the Obligations and the taking or not taking of
any action in connection therewith, and (ii) its own appraisal of the
creditworthiness of the Grantor and its subsidiaries, and the Collateral Agent
shall have no duty or responsibility, either initially or on a continuing basis,
to provide any Holder with any credit or other information with respect thereto,
whether coming into its possession before any Obligation arises or the purchase
of any Note, or at any time or times thereafter. The Collateral Agent shall not
be responsible to any Holder for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of the Patent and Trademark Security Agreement or the financial
condition of the Grantor or be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions of
the Patent and Trademark Security Agreement, or the financial condition of the
Grantor, or the existence or possible existence of any Event of Default.
4. Certain Rights of the Collateral Agent. No Holder shall have the
right to cause the Collateral Agent to take any action with respect to the
Collateral, with only the Majority Holders having the right to direct the
Collateral Agent to take any such action. If the Collateral Agent shall request
instructions from the Majority Holders with respect to any act or action
(including failure to act) in connection with the Patent and Trademark Security
Agreement, the Collateral Agent shall be entitled to refrain from such act or
taking such action unless and until it shall have received instructions from the
Majority Holders, and to the extent requested, appropriate indemnification in
respect of actions to be taken by the Collateral Agent; and the Collateral Agent
shall not incur liability to any person by reason of so refraining. Without
limiting the foregoing, no Holder shall have any right of action whatsoever
against the Collateral Agent as a result of the Collateral Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Majority Holders or as otherwise specifically provided in the Patent and
Trademark Security Agreement.
5. Reliance. The Collateral Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
the proper person or entity, and, with respect to all legal matters pertaining
to the Patent and Trademark Security Agreement and its duties thereunder, upon
advice of counsel selected by it.
6. Indemnification. To the extent the Collateral Agent is not
reimbursed and indemnified by the Grantor and/or its subsidiaries, the Holders
will reimburse and indemnify the Collateral Agent, in proportion to their
respective principal amounts of Obligations, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on,
E-24
incurred by or asserted against the Collateral Agent in performing its duties
hereunder or under the Patent and Trademark Security Agreement, or in any way
relating to or arising out of the Patent and Trademark Security Agreement except
for those determined by a final judgment (not subject to further appeal) of a
court of competent jurisdiction to have resulted solely from the Collateral
Agent's own negligence or willful misconduct.
7. The Collateral Agent in its Individual Capacity. The Collateral
Agent and its affiliates may lend money to, purchase, sell and trade in
securities of and generally engage in any kind of business with the Grantor or
any affiliate or subsidiary of the Grantor as if it were not performing the
duties specified herein, and may accept fees and other consideration from the
Grantor for services to the Grantor in connection with the Transaction Documents
and otherwise without having to account for the same to the Holders; provided,
however, that the Collateral Agent on behalf of itself and such affiliates,
hereby waives any claim, right or Lien against the Collateral in any way arising
from or relating to any such loan, securities transaction or business with the
Grantor.
8. Holders. The Collateral Agent may deem and treat the holder of
record of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment or transfer thereof, as the case may be,
shall have been filed with the Collateral Agent. Any request, authority or
consent of any person or entity who, at the time of making such request or
giving such authority or consent, is the holder of record of any Note shall be
conclusive and binding on any subsequent holder, transferee or assignee, as the
case may be, of such Note or of any Note(s) issued in exchange therefor.
9. Resignation by the Collateral Agent. (a) The Collateral Agent may
resign from the performance of all its functions and duties under the Patent and
Trademark Security Agreement at any time by giving 60 Business Days' prior
written notice (as provided in the Patent and Trademark Security Agreement) to
the Grantor and the Holders. Such resignation shall take effect upon the
appointment of a successor Collateral Agent pursuant to clauses (b) and (c)
below.
(b) Upon any such notice of resignation, the Majority Holders shall
appoint a successor Collateral Agent hereunder.
(c) If a successor Collateral Agent shall not have been so appointed
within said 60 Business Day period, the Collateral Agent shall then appoint a
successor Collateral Agent who shall serve as Collateral Agent hereunder or
thereunder until such time, if any, as the Majority Holders appoint a successor
Collateral Agent as provided above. If a successor Collateral Agent has not been
appointed within such 60-day period, the Collateral Agent may petition any court
of competent jurisdiction or may interplead the Grantor and Holders in a
proceeding for the appointment of a successor Collateral Agent, and all fees,
including but not limited to extraordinary fees associated with the filing of
interpleader, and expenses associated therewith shall be payable by the Grantor.
E-25
(d) The fees of any successor Collateral Agent for its services as
such shall be payable by the Grantor.
E-26
EXHIBIT F
FORM OF PATENT SECURITY AGREEMENT
This PATENT SECURITY AGREEMENT dated this _____ day of February 1999, made by
Cephalon Inc., a Delaware corporation, ("Grantor") to Delta Opportunity Fund,
Ltd., as collateral agent (in such capacity, the "Collateral Agent") on behalf
of the Holders.
BACKGROUND
WHEREAS, Grantor has acquired certain right, title and interest in
certain U.S. patents and patent applications (identified in Exhibit A hereto);
WHEREAS, Grantor and the Buyers are parties to certain Note Purchase
Agreements, dated as of February ___, 1999 (as from time to time amended or
supplemented, the "Note Purchase Agreements"), pursuant to which, among other
things, the Buyers have agreed to purchase $30,000,000 aggregate principal
amount of 11% Revenue Sharing Senior Secured Notes due 2002 (the "Notes");
WHEREAS, it is a condition precedent to the several obligations of the
Buyers to purchase their respective Notes that the Grantor shall have executed
and delivered a Patent and Trademark Security Agreement to the Collateral Agent
for the ratable benefit of the Holders;
WHEREAS, Grantor wishes to grant to Collateral Agent a security
interest in all of its property and assets to secure the performance of its
obligations under the Notes;
WHEREAS, the Grantor is contemporaneously entering into a Security
Agreement and a Patent and Trademark Security Agreement with the Collateral
Agent for the ratable benefit of the Holders; and
WHEREAS, Grantor and Collateral Agent by this instrument seek to
confirm and make a record of the grant of a security interest in the Patents.
F-27
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Grantor does hereby acknowledge that
it has granted to Collateral Agent a security interest in all of Grantor's
right, title and interest in, to, and under the Patents. Grantor also
acknowledges and confirms that the rights and remedies of Collateral Agent with
respect to the security interests in the Patents granted hereby are more fully
set forth in the Patent and Trademark Security Agreement and the Security
Agreement, the terms and provisions of which are incorporated herein by
reference.
CEPHALON DELTA OPPORTUNITY FUND, LTD.
By:________________________ By:___________________________
Name: Name
Title: Title:
F-28
STATE OF ____________________)
) SS:
COUNTY OF ___________________)
Subscribed and sworn to this ____ day of _______________, 1999.
________________________________
Notary Public
My Commission Expires: ___________
F-29
EXHIBIT A
ISSUED U.S. PATENTS
-------------------
------------------------------------------------------------------------------------------------------------
PATENT NO. TITLE ASSIGNEE ISSUE DATE
---------- ----- -------- ----------
------------------------------------------------------------------------------------------------------------
US 4,177,290 "Acetamide Derivatives" Xxxxx 12/4/79
Laboratories
------------------------------------------------------------------------------------------------------------
US 4,927,855 "Levorotatory Isomer of Xxxxx 5/22/90
Benzyhydrylsulfinyl Derivatives" Laboratories
------------------------------------------------------------------------------------------------------------
US 5,180,745 "Method for Providing a Neuroprotective Xxxxx 1/19/93
Effect" Laboratories
------------------------------------------------------------------------------------------------------------
US unknown "Extrusion and Freeze-Drying Method for Xxxxx Allowed
Preparing Particles Containing an Active Laboratories
Ingredient"
------------------------------------------------------------------------------------------------------------
US 5,391,576 "Method for Treating and Protecting the Xxxxx 2/21/95
Cerebral Tissue Against Repercussions of Laboratories
Cerebral Ischaemia and Cerebral Infarctions"
------------------------------------------------------------------------------------------------------------
US 5,401,776 "Use of Modafinil for the Treatment of Xxxxx 3/28/95
Urinary and Fecal Incontinence" Laboratories
------------------------------------------------------------------------------------------------------------
US 5,612,379 "Modafinil for the Treatment of Sleep Xxxxx 4/18/97
Apneas and Ventilatory Disorders of Laboratories
Central Origin"
------------------------------------------------------------------------------------------------------------
US 5,719,168 "Acetamide Derivatives and Their Use as Xxxxx 2/17/98
Feeding Behaviour Modifiers" Laboratories
------------------------------------------------------------------------------------------------------------
F-30
------------------------------------------------------------------------------------------------------------
US 5,618,845 "Acetamide Derivative Having Defined Cephalon, Inc. 4/8/97
Particle Size"
------------------------------------------------------------------------------------------------------------
F-31
EXHIBIT G
FORM OF TRADEMARK SECURITY AGREEMENT
This TRADEMARK SECURITY AGREEMENT dated this ___ day of February 1999,
made by Cephalon Inc., a Delaware corporation, ("Grantor") to Delta Opportunity
Fund, Ltd., as collateral agent (in such capacity, the "Collateral Agent") on
behalf of the Holders.
BACKGROUND
WHEREAS, Grantor has acquired an interest in a certain trademark (the
"Trademark") (identified in Exhibit A hereto);
WHEREAS, Grantor and the Buyers are parties to certain Note Purchase
Agreements, dated as of February 25, 1999 (as from time to time amended or
supplemented, the "Note Purchase Agreements"), pursuant to which, among other
things, the Buyers have agreed to purchase $30,000,000 aggregate principal
amount of 11% Revenue Sharing Senior Secured Notes due 2002 (the "Notes");
WHEREAS, it is a condition precedent to the several obligations of the
Buyers to purchase their respective Notes that the Grantor shall have executed
and delivered a Patent and Trademark Security Agreement to the Collateral Agent
for the ratable benefit of the Holders;
WHEREAS, Grantor wishes to grant to Collateral Agent a security
interest in all of its property and assets to secure the performance of its
obligations under the Transaction Documents;
WHEREAS, the Grantor is contemporaneously entering into a Security
Agreement and a Patent and Trademark Security Agreement with the Collateral
Agent for the ratable benefit of the Holders;
WHEREAS, Grantor and Collateral Agent by this instrument seek to
confirm and make a record of the grant of a security interest its interest in
the Trademark.
G-32
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Grantor does hereby acknowledge that
it has granted to Collateral Agent a security interest in all of Grantor's
interests the Trademark. Grantor also acknowledges and confirms that the rights
and remedies of Collateral Agent with respect to the security interests in the
Trademark granted hereby are more fully set forth in the Patent and Trademark
Security Agreement, the terms and provisions of which are incorporated herein by
reference.
CEPHALON, INC. DELTA OPPORTUNITY FUND, LTD.
By:____________________________ By:___________________________
Name: Name:
Title: Title:
G-33
STATE OF ____________________)
) SS:
COUNTY OF ___________________)
Subscribed and sworn to this ____ day of _______________, 1999.
__________________________________
Notary Public
My Commission Expires: __________
G-34
EXHIBIT A
TRADEMARK U.S. REGISTRATION NUMBER REGISTRANT
--------- ------------------------ ----------
PROVIGIL 2,000,231 Genelco, S.A.
G-35