EXHIBIT 2.3
COLLATERAL ASSIGNMENT OF PATENTS
THIS COLLATERAL ASSIGNMENT OF PATENTS (hereinafter referred to as the
"Agreement"), dated as of March 9, 1999, by and between Repligen Corporation, a
Delaware corporation (hereinafter referred to as the "Company"), and Victoria
Beck and Autism Research Institute (collectively, the "Sellers").
W I T N E S S E T H T H A T:
WHEREAS, pursuant to a Patent Purchase Agreement and related assignments of
even date herewith (the "Purchase Agreement"), the Company has purchased certain
patent applications from the Sellers and has agreed to fulfill certain
obligations to the Sellers; and
WHEREAS, to secure its performance of such obligations, the Company has
agreed to enter into this Agreement and to grant the collateral assignment
hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, and to secure the
payment and performance of all the Secured Obligations (as defined below), the
parties hereto agree as follows:
1. Definitions. All capitalized terms used herein and not otherwise
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defined shall have the meanings prescribed therefor in the Purchase Agreement.
The term "Secured Obligations" means all obligations of the Company to the
Sellers under Sections 2.02(f) and 6.01 of the Purchase Agreement. The term
"Event of Default" means (i) a material breach by the Company of any of the
Secured Obligations, which breach continues uncured for a period of at least 90
days after written notice of breach has been given by the Sellers to the
Company, or (ii) the Buyer ceases to conduct business, is liquidated, is
dissolved or initiates or is subjected to any proceedings for relief in
bankruptcy or other insolvency laws and such proceedings have not been vacated
or set aside within one hundred and twenty (120) days from the date of
commencement thereof.
2. Assignment and Grant of Agreement and Security Interest. As collateral
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security for the prompt and complete payment and performance of all the Secured
Obligations, the Company hereby grants to the Sellers a security interest in,
and, contingent upon the occurrence an Event of Default, assigns, transfer and
conveys to the Sellers all of the Company's right, title and interest in, to and
under, (i) the United States and foreign patent applications listed on Schedule
I and all re-issues, divisions, continuations, renewals, extensions and
continuations-in-art of such patent applications(the "Patent Applications"),
(ii) all United States and foreign patents which may issue from such Patent
Applications, (iii) the inventions disclosed in any of
the foregoing, and (iv) all other Intellectual Property Rights (all of which is
hereinafter collectively called the "Collateral").
3. Continued Use of the Collateral. During the term of this Agreement,
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unless an Event of Default shall have occurred and the Sellers shall have
exercised their rights under Section 4 below, the Company shall have the full
and exclusive right to use and enjoy the Collateral, and the Sellers shall have
no such rights.
4. Remedies. If an Event of Default has occurred and is continuing, upon
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written notice from the Sellers to the Company, ownership of the Collateral
shall automatically and without further action by the Company revert to the
Sellers, who may thereafter exercise all rights of ownership in and to the
Collateral. Upon such notice and at the request of the Sellers, the Company
shall execute and deliver to the Sellers an assignment in recordable form which
evidences such reversion of title. In addition, the Sellers shall be entitled
to exercise all rights and remedies of a Secured Party under the Uniform
Commercial Code with respect to the Collateral.
5. Power of Attorney. In the event that the Company fails to execute the
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assignment referred to in Section 4, the Company hereby irrevocably appoints the
Sellers its true and lawful attorney (such appointment coupled with an
interest), with full power of substitution, to execute and deliver such
assignment in the name of the Company.
6. Notices. All notices, approvals, requests, demands and other
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communications under this Agreement shall be in writing, and shall be given in
accordance with Section 10.01 of the Purchase Agreement.
7. Severability. Any provision of this Agreement which is prohibited or
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unenforceable in any jurisdiction shall not invalidate the remaining provisions
hereof, and any such prohibition or enforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
8. No Waiver; Cumulative Remedies. The Sellers shall not, by any act,
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delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder, and no waiver shall be valid unless in writing, signed by
the Sellers, and then only to the extent therein set forth. A waiver by the
Sellers of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Sellers would otherwise have
had on any other occasion. No failure to exercise nor any delay in exercising
on the part of the Sellers any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law.
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9. Waivers; Amendments. None of the terms and provisions of this
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Agreement may be waived, altered, modified or amended except by an instrument in
writing executed by the parties hereto.
10. Limitation by Law. All rights, remedies and powers provided herein
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may be exercised only to the extent that the exercise thereof does not violate
any applicable provision of law, and all the provisions hereof are intended to
be subject to all applicable mandatory provisions of law which may be
controlling and to be limited to the extent necessary so that they will not
render this Agreement invalid, unenforceable in whole or in part or not entitled
to be recorded, registered, or filed under the provisions of any applicable law.
11. Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the Sellers and its successors and assigns.
12. Termination and Reassignment. The Sellers agrees that upon the
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payment in full and satisfaction of all the Secured Obligations, this contingent
assignment of the Collateral and any proceeds thereof or distributions in
respect thereto shall be released from all liens created hereby, and the Sellers
will execute all such documents as may be reasonably requested by the Company to
release the security interests created hereby and to terminate the contingent
assignment (without representation or warranty) of any or all of the Company's
Collateral.
13. Applicable Law. This Agreement and any rights and remedies of the
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parties hereto arising from the relationship between the parties contemplated
herein, whether or not arising under this agreement, shall be governed by, and
be construed and interpreted in accordance with, the laws of the Commonwealth of
Massachusetts and the United States of America.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
set forth above.
REPLIGEN CORPORATION
By: /s/ Walter Herlihy
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Name: Walter Herlihy
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Title: President, CEO
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AUTISM RESEARCH INSTITUTE
By: /s/ Bernard Rimland
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Title: Director
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/s/ Victoria A. Beck
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Victoria A. Beck
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STATE OF ____________________)
COUNTY OF ___________________)
__________ __, 199_
Then personally appeared the above-named __________________ known to
me as the _________________________ of ________________ and acknowledged the
foregoing instrument to be his free act and deed and the free act and deed of
said ___________ ____________________________ on this __________ day of
_________, 199_.
Before me,
Notary Public
My commission expires:
[Form of Filing Letter]
___________ __, 199_
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
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Commissioner of Patents and Trademarks
Washington, D.C. 20231
Attn: Assignment Branch
Re: Recordation of Assignment
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Ladies and Gentlemen:
Enclosed please find for recordation a Collateral Assignment of
Patents and Trademarks (see Schedule I attached thereto for registration
numbers) to [SELLERS].
The address of the assignee is:
[SELLERS]
[ADDRESS]
A certified check in the amount of $__________ made payable to the
Commissioner of Patents and Trademarks is submitted herewith.
Please return the recorded Assignments to the undersigned.
Very truly yours,
Enclosures