EXHIBIT 4.2
TRADEMARK COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT
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AGREEMENT made this 17th day of September, 2002 by and between AMERICAN
BIOGENETIC SCIENCES, INC., a Delaware corporation ("DEBTOR"), with its chief
executive office at 1375 Akron Street, Copiague, New York 11726, and ALFRED J.
ROACH, an individual ("SECURED PARTY"), residing at 207 Inlet Drive,
Lindenhurst, New York 11757.
W I T N E S S E T H:
WHEREAS, Debtor has adopted, used and is using, and is the owner of the
entire right, title, and interest in and to the trademarks, tradenames,
tradestyles, service marks, designs, and applications therefor described in
Exhibit A annexed hereto and made a part hereof; and
WHEREAS, Secured Party is contemporaneously herewith making a loan to
Debtor in the principal amount of $75,000 pursuant to a certain Promissory Note
of even date herewith (as same may be amended, modified, supplemented, extended,
renewed, restated or replaced, the "NOTE"), and may, but is not obligated to,
make additional loans to, and/or provide other financial accommodations for,
Debtor in the future; and
WHEREAS, in order to induce Secured Party to make the loan evidenced by the
Note and, if mutually determined among the parties, make other loans or advances
to, and/or provide other financial accommodations for, Debtor in the future,
Debtor has agreed to grant to Secured Party certain collateral security as set
forth herein;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Debtor hereby agrees as follows:
1. GRANT OF SECURITY INTEREST
--------------------------
As collateral security for the prompt performance, observance and
indefeasible payment in full of all of the Obligations (as hereinafter defined),
Debtor hereby grants to Secured Party a continuing security interest in, and a
general lien upon, and hereby assigns to Secured Party all of Debtor's right,
title and interest in and to the following, in each case whether now or
hereafter existing or in which Debtor now has or hereafter acquires an interest
and wherever the same may be located (the "COLLATERAL"):
(a) the trademarks, tradenames, tradestyles, service marks, designs,
applications, registrations and recordings described in Exhibit A hereto in the
United States Patent and Trademark Office or in any similar office or agency of
the United States, any State thereof, any political subdivision thereof or in
any other countries, and all reissues, extensions and renewals thereof, all
rights (but not obligations) corresponding thereto (including without limitation
the right (but not the obligation) to sue for past, present and future
infringements in the
name of Debtor or in the name of Secured Party (the "TRADEMARKS"), it being
understood that the rights and interest assigned hereby shall include, without
limitation, all rights and interests pursuant to licensing or other contracts in
favor of Debtor pertaining to the Trademarks;
(b) all general intangibles relating to the Trademarks;
(c) the goodwill of the business symbolized by each of the Trademarks,
including, without limitation, all customer lists and other records relating to
the distribution of products or services bearing the Trademarks; and
(d) all books, records, ledger cards, files, correspondence, computer
programs, tapes, disks and related data processing software that at any time
evidence or contain information relating to any of the Collateral or are
otherwise necessary or helpful in the collection thereof or realization
thereupon; and
(e) all proceeds, products, rents and profits (including without
limitation license royalties and proceeds of infringement suits) of or from any
and all of the foregoing Collateral and, to the extent not otherwise included,
all payments under insurance (whether or not Secured Party is the loss payee
thereof), or any indemnity, warranty or guaranty, payable by reason of loss or
damage to or otherwise with respect to any of the foregoing Collateral.
In addition to, and not by way of limitation of, the granting of a security
interest in the Collateral pursuant to this Section, Debtor hereby, effective
upon the occurrence of an Event of Default (as hereinafter defined) and upon
written notice from Secured Party, grants, sells, conveys, transfers, assigns
and sets over to Secured Party, all of Debtor's right, title and interest in and
to the Collateral.
2. OBLIGATIONS SECURED
-------------------
The security interest, lien and other interests granted to Secured Party
pursuant to this Agreement shall secure the prompt performance, observance and
indefeasible payment in full of any and all loans, indebtedness, liabilities and
obligations of any kind owing by Debtor to Secured Party (including the payment
of amounts that would become due but for the operation of the automatic stay
under Section 362(a) of the Bankruptcy Code, 11 U.S.C.(S) 362(a)), and all
extensions or renewals thereof, whether for principal, interest (including
without limitation interest that, but for the filing of a petition in bankruptcy
with respect to Debtor, would accrue on such obligations), however evidenced,
whether as principal, guarantor or otherwise, whether arising under the Note or
otherwise, whether direct or indirect, absolute or contingent, joint or several,
secured or unsecured, due or not due, primary or secondary, liquidated or
unliquidated,
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original, renewed or extended, whether arising directly or acquired from others
and including, without limitation, Secured Party's charges, commissions,
interest, expenses, costs and attorneys' fees chargeable to Debtor under this
Agreement, the Note or in connection with any of the foregoing (including the
payment of amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.(S) 362(a)), and all
extensions or renewals thereof, whether for principal, interest (including
without limitation interest that, but for the filing of a petition in bankruptcy
with respect to Debtor, would accrue on such obligations), (all hereinafter
referred to as "OBLIGATIONS").
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
Debtor hereby represents, warrants and covenants (which shall survive the
execution and delivery of this Agreement) to Secured Party that:
(a) Debtor will pay and perform all of the Obligations according to
their terms.
(b) The chief place of business and chief executive office of Debtor
and the office where Debtor keeps its books and records concerning the
Collateral are located at the address first specified above for Debtor.
(c) Debtor conducts, and for the past five years has conducted, no
business under any name, fictitious name, or trade name, other than American
Biogenetic Sciences, Inc. which is Debtor's legal name. Debtor's federal tax
identification number is 11-2655906.
(d) Debtor has exclusive possession and control of all Collateral.
(e) All corporate action required to authorize Debtor's execution,
delivery and performance of this Agreement has been duly and validly taken.
(f) Debtor will not change its jurisdiction of incorporation or
organization.
(g) All of the existing Collateral is valid and subsisting in full
force and effect, and Debtor owns the sole, full, and clear title thereto, and
the right and power to grant the security interests granted hereunder. Debtor
will, at Debtor's expense, perform all acts and execute all documents necessary
to maintain the existence of the Collateral as valid, subsisting and registered
Trademarks, including, without limitation, the filing of any renewal affidavits
and applications. The Collateral is not subject to any liens, claims, mortgages,
assignments, licenses, security interests, or encumbrances of any nature
whatsoever, except the security interests granted hereunder.
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(h) Debtor will not assign, sell, mortgage, lease, transfer, pledge,
hypothecate, grant a security interest in or lien upon, encumber, grant an
exclusive or non-exclusive license relating to the Collateral, except as
permitted herein, or otherwise dispose of any of the Collateral without the
prior written consent of Secured Party. Nothing in this Agreement shall be
deemed a consent by Secured Party to any such action, except as such action is
expressly permitted hereunder.
(i) Debtor will, at Debtor's expense, perform all acts and execute all
documents requested at any time by Secured Party to evidence, perfect, maintain,
record, or enforce the security interest in the Collateral granted hereunder or
to otherwise further the provisions of this Agreement. Debtor hereby authorizes
Secured Party to execute and file one or more financing statements (or similar
documents) with respect to the Collateral signed only by Secured Party or as
otherwise determined by Secured Party. Debtor further authorizes Secured Party
to file financing statements and/or have this or any other similar security
agreement filed with the Commissioner of Patents and Trademarks or other
appropriate federal, state or government office.
(j) This Agreement, together with the filing of a financing statements
describing the Collateral with the Secretary of State of the State of Delaware
and the recording of this Agreement with the United States Patent and Trademark
Office, which will be made, creates a valid, perfected and first priority
security interest in the Collateral, securing the payment of the Obligations,
and all other filings and other actions necessary or desirable to perfect and
protect such security interest have been or will be duly made or taken. Except
therefor, all actions necessary to perfect and protect the security interest
created hereby have been duly taken. Except for the foregoing, no authorization,
approval or other action by, and no notice to or filing with, any governmental
authority or any other person is required either (i) for the grant by Debtor of
the security interest granted hereby or for the execution, delivery or
performance of this Agreement by Debtor or (ii) for the perfection of or the
exercise by Secured Party of its rights and remedies hereunder.
(k) Debtor has not granted any licenses with respect to any of the
Collateral.
(l) Debtor will, concurrently with the execution and delivery of this
Agreement, execute and deliver to Secured Party five (5) originals of a Special
Power of Attorney in the form of Exhibit B annexed hereto for the implementation
of the assignment, sale or other disposition of the Collateral pursuant to
Secured Party's exercise of the rights and remedies granted to Secured Party
hereunder.
(m) Debtor shall not file any application for the registration of a
Trademark with the United States Patent and Trademark Office or any similar
office or agency in the United States, any state therein, or any other country,
unless Debtor has by thirty (30) days prior written notice informed Secured
Party of such action. Upon request of Secured Party, Debtor shall
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execute and deliver to Secured Party any and all assignments, agreements,
instruments, documents, and such other papers as may be requested by Secured
Party to evidence the security interests of Secured Party in such Trademark.
(o) Debtor has not abandoned any of the Trademarks and Debtor will not
do any act, nor omit to do any act, whereby the trademarks may become abandoned,
invalidated, unenforceable, avoided, or avoidable. Debtor shall notify Secured
Party immediately if it knows or has reason to know of any reason why any
application, registration, or recording may become abandoned, canceled,
invalidated, avoided, or avoidable.
(p) Debtor will render all assistance necessary to Secured Party in
any proceeding before the United States Patent and Trademark Office, any federal
or state court, or any similar office or agency in the United States or any
state therein or any other country to maintain such application and registration
of the Trademarks as Debtor's exclusive property and to protect Secured Party's
interest therein, including, without limitation, filing of renewals, affidavits
of use, affidavits of incontestability and opposition, interference, and
cancellation proceedings.
(q) Debtor will promptly notify Secured Party if Debtor (or any
affiliate or subsidiary thereof) learns of any use by any person of any other
process or product which infringes upon any Trademark. If requested by Secured
Party, Debtor, at Debtor's expense, shall join with Secured Party in such action
as Secured Party, in Secured Party's discretion, may deem advisable for the
protection of Secured Party's interest in and to the Trademarks.
(r) Debtor assumes all responsibility and liability arising from the
use of Trademarks and Debtor hereby indemnifies and holds Secured Party harmless
from and against any claim, suit, loss, damage, or expense (including attorneys'
fees) arising out of any alleged defect in any product manufactured, promoted,
or sold by Debtor (or any affiliate or subsidiary thereof) in connection with
any Trademark or out of the manufacture, promotion, labeling, sale or
advertisement of any such product by Debtor (or any affiliate or subsidiary
thereof).
(s) Debtor will promptly pay Secured Party for any and all costs and
reasonable expenditures incurred by Secured Party pursuant to the provisions of
this Agreement or for the defense, protection, or enforcement of the
Obligations, the Collateral, or the security interests granted hereunder,
including, but not limited to, all filing or recording fees, court costs,
collection charges, travel expenses, and attorneys' fees and reasonable legal
expenses. Such costs and reasonable expenditures shall be payable on demand,
together with interest at the then applicable rate set forth in the Note and
shall be part of the Obligations secured hereby.
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4. EVENTS OF DEFAULT
-----------------
All Obligations shall become immediately due and payable, without notice or
demand, at the option of Secured Party, upon the occurrence of any one or more
Events of Default under the Note (each an "EVENT OF DEFAULT" hereunder).
5. RIGHTS AND REMEDIES
-------------------
Upon the occurrence of any such Event of Default and during the continuance
thereof, in addition to all other rights and remedies of Secured Party, whether
provided under law, the Note or otherwise, Secured Party shall have the
following rights and remedies which may be exercised without notice to, or
consent by, Debtor except as such notice or consent is expressly provided for
hereunder:
(a) Secured Party may require that neither Debtor nor any affiliate or
subsidiary of Debtor make any use of the Trademarks for any purpose whatsoever.
Secured Party may make use of any Trademarks for the sale of goods, completion
of work-in-process or rendering of services or otherwise in connection with
enforcing any other security interest granted to Secured Party by Debtor or any
subsidiary or affiliate of Debtor.
(b) Secured Party may grant such license or licenses relating to the
Collateral for such term or terms, on such conditions, and in such manner, as
Secured Party shall in its discretion deem appropriate. Such license or licenses
may be general, special, or otherwise, and may be granted on an exclusive or
non-exclusive basis throughout all or any part of the United States of America,
its territories and possessions, and all foreign countries.
(c) Secured Party may assign, sell, or otherwise dispose of the
Collateral or any part thereof, either with or without special conditions or
stipulations except that if notice to Debtor of intended disposition of
Collateral is required by law, the giving of five (5) business days prior notice
in the manner set forth in Section 10(d) hereof shall be deemed reasonable
notice thereof and Debtor waives any other notice with respect thereto. Secured
Party shall have the power to buy the Collateral or any part thereof, and
Secured Party shall also have the power to execute assurances and perform all
other acts which Secured Party may, in its discretion, deem appropriate or
proper to complete such assignment, sale, or disposition.
(d) Upon written demand from Secured Party, Debtor shall execute and
deliver to Secured Party an assignment or assignments of Trademarks and such
other documents as are necessary or appropriate to carry out the intent and
purposes of this Agreement; provided that the failure of Debtor to comply with
such demand will not impair or affect the validity of the conditional assignment
effected by the last paragraph of Section 2 or its effectiveness upon notice by
Secured Party as specified in the last paragraph of Section 2. Debtor agrees
that such an assignment (including without limitation the conditional assignment
effected by the last
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paragraph of Section 2) and/or recording shall be applied to reduce the
Obligations outstanding only to the extent that Secured Party receives cash
proceeds in respect of the sale of, or other realization upon, the Collateral.
(e) In addition to the foregoing, in order to implement the
assignment, sale, or other disposition of any of the Collateral pursuant to the
last paragraph of Section 2 or Section 5(c) hereof, Secured Party may at any
time execute and deliver on behalf of Debtor, pursuant to the authority granted
in the Powers of Attorney described in Section 3 (h) hereof, one or more
instruments of assignment of the Trademarks (or any application, registration,
or recording relating thereto), in form suitable for filing, recording, or
registration. Debtor agrees to pay Secured Party on demand all costs incurred in
any such transfer of the Collateral, including, but not limited to, any taxes,
fees, and reasonable attorneys' fees and legal expenses.
(f) Secured Party may first apply the proceeds actually received from
any such license, assignment, sale, or other disposition of Collateral to the
costs and expenses thereof, including, without limitation, attorneys' fees and
all legal, travel, and other expenses which may be incurred by Secured Party.
Thereafter, Secured Party may apply any remaining proceeds to such of the
Obligations as Secured Party may in its discretion determine. Debtor shall
remain liable to Secured Party for any expenses or obligations remaining unpaid
after the application of such proceeds, and Debtor will pay Secured Party on
demand any such unpaid amount, together with interest at a rate equal to the
highest rate then payable on the Obligations.
(g) Debtor shall supply to Secured Party or to Secured Party's
designee, Debtor's knowledge and expertise relating to the manufacture and sale
of the products and services to which the Trademarks relate and Debtor's
customer lists and other records relating to the Trademarks and the distribution
thereof.
Nothing contained herein shall be construed as requiring Secured Party to
take any such action at any time. All of Secured Party's rights and remedies,
whether provided under law, this Agreement, the Note or otherwise, shall be
cumulative and none is exclusive. Such rights and remedies may be enforced
alternatively, successively, or concurrently.
6. SECURED PARTY APPOINTED ATTORNEY-IN-FACT.
-----------------------------------------
Debtor hereby irrevocably appoints Secured Party Debtor's attorney-in-fact,
with full authority in the place and stead of Debtor and in the name of Debtor,
after the occurrence of an Event of Default, to take any action and to execute
any instrument which Secured Party may deem necessary or advisable to accomplish
the purposes of this Agreement, including, without limitation, (a) file
financing statements (and similar documents) and file or record this Agreement
with the Secretary of State of the State of Delaware and with any other federal,
state or foreign government or agency to evidence, perfect, maintain, record or
enforce the security interest and lien in the Collateral granted hereunder,
including without limitation, recording this
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Agreement with the United States Patent and Trademark Office, (b) to ask,
demand, collect, sue for, recover, compromise, receive and give acquittance and
receipts for moneys due and to become due under or in respect of any of the
Collateral, (c) to file any claims or take any action or institute any
proceedings which Secured Party may deem necessary or desirable for the
protection of any of the Collateral or otherwise to enforce the rights of
Secured Party with respect to any of the Collateral, (d) to pay or discharge any
taxes, liens, or other encumbrances at any time levied, placed on or threatened
against the Collateral; and (e) generally, to otherwise do such acts and things
which Secured Party deems necessary or useful to protect, preserve or realize
upon the Collateral and Secured Party's security interest therein, in each case
as full and effectually as if Secured Party were the absolute owner thereof. The
powers conferred on Secured Party hereunder shall not impose any duty upon it to
exercise any such powers. Neither Secured Party nor any attorney-in-fact shall
be liable for any act or omission, error in judgment or mistake of law provided
the same is not the result of gross negligence or willful misconduct. Debtor
hereby ratifies and approves all acts of Secured Party, as its attorney-in-fact,
and Secured Party, as its attorney-in-fact, will not be liable for any acts of
commission or omission, nor for any error of judgment or mistake of fact or law.
These powers, being coupled with an interest, are until all of the Obligations
are indefeasibly paid in full and this Agreement is terminated. After the
occurrence of an Event of Default, Debtor also authorizes Secured Party, at any
time and from time to time, to communicate in its own name with any party to any
contract, agreement or instrument included in the Collateral with regard to the
assignment of such contract, agreement or instrument and other matters relating
thereto. Secured Party may, but shall be under no obligation, to take any of the
foregoing actions and Secured Party shall have no liability or responsibility
for any act or omission taken with respect thereto.
7. SECURED PARTY MAY PERFORM.
--------------------------
(a) Secured Party may, in its discretion, pay any amount or do any act
which Debtor fails to pay or do as required hereunder or as requested by Secured
Party to preserve, defend, protect, maintain, record, amend or enforce the
Obligations, the Collateral, or the security interest granted hereunder,
including but not limited to all filing or recording fees, court costs,
collection charges and reasonable attorneys' fees.
(b) If Debtor fails to perform any agreement contained herein, Secured
Party may itself perform, or cause performance of, such agreement, and the
expenses of the incurred in connection therewith shall be payable by Debtor on
demand together with interest at the then applicable rate set forth in the Note
and shall be part of the Obligations secured hereby.
8. SECURED PARTY'S DUTIES.
-----------------------
(a) The powers conferred on Secured Party hereunder are solely to
protect Secured Party's interest in the Collateral and shall not impose any duty
upon it to exercise any such powers. Secured Party shall not have any duty as to
any Collateral or as to the taking of
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any necessary steps to preserve rights against prior parties or any other Person
pertaining to any Collateral.
(b) Anything contained herein to the contrary notwithstanding, (i)
Debtor shall remain liable under any contracts and agreements included in the
Collateral, to the extent set forth therein, to perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed, (ii) the exercise by Secured Party of any of its rights hereunder
shall not release Debtor from any of its duties or obligations under the
contracts and agreements included in the Collateral, and (iii) Secured Party
shall not have any obligation or liability under any contracts and agreements
included in the Collateral by reason of this Agreement, nor shall Secured Party
be obligated to perform any of the obligations or duties of Debtor thereunder or
to take any action to collect or enforce any claim for payment assigned
hereunder.
9. INDEMNITY AND EXPENSES.
-----------------------
Debtor agrees to indemnify Secured Party from and against any and all
claims, losses and liabilities growing out of or resulting from this Agreement
(including, without limitation, enforcement of this Agreement). Debtor will upon
demand pay to Secured Party the amount of any and all reasonable expenses,
including the fees and out-of-pocket disbursements of its counsel and of any
experts and agents, which Secured Party may incur in connection with (i) filing
or recording fees incurred in connection with this Agreement, (ii) the custody,
preservation, use or operation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or enforcement of
any of the rights of Secured Party hereunder, or (iv) the failure by Debtor to
perform or observe any of the provisions hereof.
10. MISCELLANEOUS
-------------
(a) Any failure or delay by Secured Party to require strict
performance by Debtor of any of the provisions, warranties, terms, and
conditions contained herein or in any other agreement, document, or instrument,
shall not affect Secured Party or Secured Party's right to demand strict
compliance and performance therewith, and any waiver of any default shall not
waive or affect any other default, whether prior or subsequent thereto, and
whether of the same or of a different type. None of the warranties, conditions,
provisions, and terms contained herein or in any other agreement, document, or
instrument shall be deemed to have been waived by any act or knowledge of
Secured Party, its agents, officers, or employees, but only by an instrument in
writing, signed by an officer of Secured Party and directed to Debtor,
specifying such waiver.
(b) No provision hereof shall be modified, altered or limited except
by a written instrument expressly referring to this Agreement signed by the
party to be charged thereby.
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(c) In the event that any provision hereof shall be deemed to be
invalid by any court, such invalidity shall not affect the remainder of this
Agreement.
(d) Except as otherwise expressly provided in this Agreement, any
notice, request, demand or other communication permitted or required to be given
under this Agreement shall be in writing, shall be sent by one of the following
means to the parties at their respective addresses set forth below (or to such
other address as to which a party may from time to time give notice to other)
and shall be deemed conclusively to have been given: (a) on the first business
day following the day timely deposited for next business day delivery with
Federal Express (or other similar national overnight courier service) or United
States Express Mail, with the cost of delivery prepaid or for the account of the
sender; (b) on the fifth business day following the day duly sent by certified
or registered United States mail, postage prepaid and return receipt requested;
or (c) when otherwise actually received by the addressee by hand delivery on a
business day (or on the next business day if received by hand delivery after the
close of normal business hours or on any non-business day)
If to Debtor: American Biogenetic Sciences, Inc.
1375 Akron Street
Copiague, New York 11726
Attention: President
If to Secured Party: Mr. Alfred J. Roach
207 Inlet Drive
Lindenhurst, New York 11757
(e) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York (without giving effect to its conflict of
laws rule that would otherwise require the application of the laws of another
jurisdiction).
(f) Any judicial proceeding brought by or against Debtor with respect
to any of the Obligations, this Agreement or the Note may be brought in any
court of competent jurisdiction in the State of New York, United States of
America, and, by execution and delivery of this Agreement, Debtor accepts for
itself and in connection with its properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts, and irrevocably agrees to be
bound by any judgment rendered thereby in connection with the Obligations, this
Agreement or the Note. Nothing herein shall affect the right to serve process in
any manner permitted by law or shall limit the right of Secured Party to bring
proceedings against Debtor in the courts of any other jurisdiction. Debtor
waives any objection to jurisdiction and venue of any action instituted
hereunder and shall not assert any defense based on lack of jurisdiction or
venue or based upon forum non conveniens. Any judicial proceedings by Debtor
against Secured Party involving, directly or indirectly, any matter or claim in
any way arising out of, related to or
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connected with the Obligations, this Agreement or the Note, shall be brought
only in a federal or state court located in the County of Suffolk, State of New
York.
(g) THE BORROWER WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH
THIS AGREEMENT OR THE NOTE, AND THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(h) This Agreement shall be binding on Debtor and its successors and
assigns and shall inure to the benefit of Secured Party and his heirs,
executors, estate, successors and assigns, except that Debtor may not assign
this Agreement or the Note, or assign or delegate any of its obligations
hereunder or thereunder without the prior written consent of Secured Party.
(i) All references to Debtor and Secured Party herein shall include
their respective successors and assigns. All references to the term "person"
herein shall mean an individual, sole proprietorship, limited partnership,
general partnership, a corporation (including a business trust), a joint stock
company, a trust, an unincorporated association, a joint venture association,
organization or other entity or a government department or any agency,
instrumentality or political subdivision thereof.
(j) In the event of any conflict of any of the terms or provisions of
this Agreement with any of the terms or provisions of the Note, the terms or
provisions of the Note shall control.
IN WITNESS WHEREOF, Debtor and Secured Party have executed this Agreement
as of the day and year first above written.
AMERICAN BIOGENETIC SCIENCES, INC.
By: /s/ James H. McLinden
---------------------------------------
James H. McLinden, President
/s/ Alfred J. Roach
---------------------------------------
Alfred J. Roach
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STATE OF NEW YORK )
) ss.:
COUNTY OF SUFFOLK )
As of this 17th day of September, 2002, before me personally came James H.
McLinden, to me known, who being duly sworn, did depose and say, that he is
President of AMERICAN BIOGENETIC SCIENCES, INC., the corporation described in
and which executed the foregoing instrument; and that he signed his name thereto
by order of the Board of Directors of said corporation.
/s/ Leonard W. Suroff
---------------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF SUFFOLK )
As of this 17th day of September, 2002, before me personally came Alfred J.
Roach, to me known, who, being duly sworn, did depose and say, that he is the
individual described in and who executed the foregoing instrument; and that he
signed his name thereto.
/s/ Leonard W. Suroff
---------------------------------------
Notary Public
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EXHIBIT A
LIST OF TRADEMARKS AND APPLICATIONS
-----------------------------------
1. United States Trademark Application Serial Number 75/172,105 filed on
September 26, 1996 for the trademark TpP, and all corresponding foreign
trademarks thereon.
2. United States Trademark Registration No. 2,229,273, Registration Date March
2, 1999, for the trademark FiF.
EXHIBIT B
SPECIAL POWER OF ATTORNEY
-------------------------
(TRADEMARKS)
------------
STATE OF NEW YORK )
) ss.:
COUNTY OF SUFFOLK )
KNOW ALL MEN BY THESE PRESENTS, that AMERICAN BIOGENETIC SCIENCES, INC.
("DEBTOR"), having an office at 13785 Akron Street, Copiague, New York 11726,
hereby appoints and constitutes, severally, ALFRED J. ROACH ("SECURED PARTY"),
its true and lawful attorney, with full power of substitution and with full
power and authority to perform the following acts on behalf of Debtor at any
time after the occurrence and during the continuance of an Event of Default
under the Security Agreement (as hereinafter defined):
1. Execution and delivery of any and all agreements, documents, instrument
of assignment, or other papers which Secured Party, in its discretion, deems
necessary or advisable for the purpose of assigning, selling, or otherwise
disposing of all right, title, and interest of Debtor in and to any trademarks,
tradenames, tradestyles, service marks, designs, and all applications,
registrations, recordings, reissues, extensions, and renewals thereof set forth
on Exhibit A to the Security Agreement (as defined below) or for the purpose of
recording, registering and filing of, or accomplishing any other formality with
respect to the foregoing.
2. Execution and delivery of any and all documents, statements,
certificates or other papers which Secured Party, in its discretion, deems
necessary or advisable to further the purposes described in Section 1 hereof.
This Power of Attorney, being a power coupled with an interest, is made
pursuant to a Trademark Collateral Assignment and Security Agreement between
Debtor and Secured Party, of even date herewith (the "SECURITY AGREEMENT") and
may not be revoked until payment in full of all Debtor's "Obligations", as such
term is defined in the Security Agreement and is subject to the terms and
provisions thereof.
September __, 2002
AMERICAN BIOGENETIC SCIENCES, INC.
By:
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James H. McLinden
President
STATE OF NEW YORK )
) ss.:
COUNTY OF SUFFOLK )
As of this ____ day of September, 2002, before me personally came James H.
McLinden, to me known, who being duly sworn, did depose and say, that he is a
President of AMERICAN BIOGENETIC SCIENCES, INC., the corporation described in
and which executed the foregoing instrument; and that he signed his name thereto
by order of the Board of Directors of said corporation.
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Notary Public