Exhibit 10.2
NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of June 8, 2004, by and
between DIOMED, INC., a Delaware corporation ("Borrower") and SILICON VALLEY
BANK, a California-chartered bank, with its principal place of business at 0000
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office
located at One Newton Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, doing business under the name "Silicon Valley East
("Bank").
In connection with, among other documents, the Loan and Security
Agreement (the "Loan Documents") being concurrently executed herewith between
Borrower and Bank, Borrowers agree as follows:
1. Except for the granting of non-exclusive licenses or sublicenses by
Borrower in the ordinary course of business and except for non-renewals and
other abandonments made in the good faith judgment of the Borrower, Borrower has
not, and shall not, sell, transfer, assign, mortgage, pledge, lease, grant a
security interest in, or encumber any of Borrower's Intellectual Property (as
defined below).
2. Borrower has not, and shall not, enter into a negative pledge
agreement, or similar agreement, affecting the rights of the Intellectual
Property with any other party.
3. It shall be an event of default under the Loan Documents between
Borrower and Bank if there is a breach of any term of this Negative Pledge
Agreement.
4. As used herein,
a. "Intellectual Property" means:
(i) Any and all Copyrights;
(ii) Any and all trade secrets, and any and all
intellectual property rights in computer
software and computer software products now
or hereafter existing, created, acquired or
held;
(iii) Any and all design rights which may be
available to Borrowers now or hereafter
existing, created, acquired or held;
(iv) All Mask Works or similar rights available
for the protection of semiconductor chips;
(v) All Patents;
(vi) Any Trademarks;
(vii) Any and all claims for damages by way of
past, present and future infringements of
any of the rights included above, with the
right, but not the obligation, to xxx for
and collect such damages for said use or
infringement of the intellectual property
rights identified above;
1
(viii) All licenses or other rights to use any of
the Copyrights, Patents, Trademarks, or Mask
Works and all license fees and royalties
arising from such use to the extent
permitted by such license or rights; and
(ix) All amendments, extensions, renewals and
extensions of any of the Copyrights,
Trademarks, Patents, or Mask Works; and
(x) All proceeds and products of the foregoing,
including without limitation all payments
under insurance or any indemnity or warranty
payable in respect of any of the foregoing.
b. "Copyrights" means any and all copyright rights,
copyright applications, copyright registrations and like protections
in each work of authorship and derivative work thereof, whether
published or unpublished and whether or not the same also constitutes
a trade secret, now or hereafter existing, created, acquired or held.
c. "Mask Works" means all mask work or similar rights
available for the protection of semiconductor chips, now owned or
hereafter acquired;
d. "Patents" means all patents, patent applications and
like protections including without limitation improvements,
divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same.
e. "Trademarks" means any trademark and servicemark rights,
whether registered or not, applications to register and registrations
of the same and like protections, and the entire goodwill of the
business of Borrower connected with and symbolized by such
trademarks.
5. Capitalized terms used but not otherwise defined herein shall have
the same meaning as in the Loan Documents.
6. The laws of the Commonwealth of Massachusetts shall apply to this
Agreement.
7. This Agreement shall become effective only when it shall have been
executed by Borrower and Bank.
EXECUTED as a sealed instrument under the laws of the Commonwealth of
Massachusetts as of the date first written above.
2
BORROWER:
DIOMED, INC.
By _______________________________
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
BANK:
SILICON VALLEY BANK, D/B/A
SILICON VALLEY BANK
By: ______________________________
Name: ____________________________
Title: ___________________________
3
