Exhibit 10.60


 


TRADEMARK SECURITY AGREEMENT


 


THIS SECURITY AGREEMENT is entered into as of
March            ,
2004, by and between Microfluidics Corporation, a Delaware corporation having
its principal place of business at 30 Ossipee Road, Newton, Massachusetts
02464-9101 (the “Borrower”), and
Banknorth, N.A., a national banking association organized and existing under
the laws of the United States of America with a usual place of business at 7
New England Executive Park, Burlington, Massachusetts 01803 (“Bank”).


 


NOW THEREFORE, in consideration of the
premises, Borrower hereby agrees with Bank as follows:


 


1.             Grant of Security
Interest.  Borrower hereby grants to
Bank a first priority security interest in, and conditionally assigns, but does
not transfer title to Bank, all of Borrower’s right, title and interest in and
to the following (collectively, the “Collateral”)
to secure payment and performance of all obligations of Borrower to Bank
whether such obligations are direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter arising, including without limitation,
those liabilities of Borrower to Bank pursuant to a Loan and Security Agreement
(All Assets) of even date by and among Bank, Borrower and MFIC Corporation (the
“Loan Agreement”) (collectively,
the “Obligations”).


 


The Collateral shall consist of the
following:


 


(a)            Each of the trademarks, and rights and
interests protectible as trademarks, which are presently, or in the future may
be, owned, created, acquired or used (whether pursuant to a license or
otherwise) by Borrower, in whole or in part, and all trademark rights with
respect thereto throughout the world, including all proceeds thereof (including
license royalties and proceeds of infringement suits), and rights to renew and
extend such trademarks and trademark rights;


 


(b)           All of Borrower’s right, title and interest,
in and to the trademarks and trademark registrations listed on Schedule A
attached hereto, as the same may be updated hereafter from time to time;


 


(c)           All of Borrower’s right, title and interest
to register trademark claims under any state or federal trademark law or
regulation of any foreign country, and to apply for, renew and extend the
trademark registrations and trademark rights, the right (without obligation) to
sue or bring opposition or cancellation proceedings in the name of Borrower or
in the name of Bank for past, present and future infringements of the
trademarks, registrations or trademark rights and all rights (but not
obligations) corresponding thereto in the United States and any foreign
country, and the associated goodwill;


 


(d)           All general intangibles and goodwill
relating to the Collateral; and


 


(e)           All proceeds of any and all of the foregoing
(including, without limitation, license royalties and proceeds of infringement
suits) and, to the extent not otherwise included, all payments under insurance,
or any indemnity, warranty or guaranty payable by reason of loss or damage to
or otherwise with respect to the Collateral.


 

















 


2.             Warranties and
Representations.  Borrower hereby
warrants and represents to Bank the following:


 


(a)           A true and complete schedule setting forth
all federal and state trademark registrations owned or controlled by Borrower
or licensed to Borrower, together with a summary description and full
information in respect of the filing or issuance thereof and expiration dates
is set forth on Schedule A;


 


(b)           To the best of Borrower’s knowledge, each of
the trademarks and trademark registrations is valid and enforceable, and
Borrower is not presently aware of any past, present or prospective claim by
any third party that any of the trademarks are invalid or unenforceable, or
that the use of any trademarks violates the rights of any third person, or of
any basis for any such claims;


 


(c)           Borrower is the sole and exclusive owner of
the entire and unencumbered right, title and interest in and to each of the
trademarks and trademark registrations free and clear of any liens, charges and
encumbrances, including, without limitation, pledges, assignments, licenses,
shop rights and covenants by Borrower not to sue third persons;


 


(d)           Borrower has used and will continue to use
proper statutory notice in connection with its use of each of the trademarks;


 


(e)           Borrower has used and will continue to use
consistent standards of high quality (which may be consistent with Borrower’s
past practices) in the manufacture, sale and delivery of products and services
sold or delivered under or in connection with the trademarks, including, to the
extent applicable, in the operation and maintenance of its merchandising
operations, and will continue to maintain the validity of the trademarks;


 


(f)            Except for the filing of financing
statements with the Secretary of State of Delaware under the Uniform Commercial
Code and filings with the United States Patent and Trademark Office necessary
to perfect the security interests created hereunder, no authorization, approval
or other action by, and no notice to or filing with, any governmental authority
or regulatory body is required either for the grant by Borrower of the security
interest hereunder or for the execution, delivery or performance of this
Agreement by Borrower or for the perfection of or the exercise by Bank of its
rights hereunder to the Collateral in the United States.


 


3.             After-Acquired
Trademark Rights.  If Borrower shall
obtain rights to any new trademarks, the provisions of this Agreement shall
automatically apply thereto.  Borrower
shall give prompt notice in writing to Bank with respect to any such new
trademarks or renewal or extension of any trademark registration.  Borrower shall bear any expenses incurred in
connection with future applications for trademark registration.


 


4.             Litigation and
Proceedings.  Borrower shall
commence and diligently prosecute in its own name, as the real party in
interest, for its own benefit, and its own expense, such suits, administrative
proceedings or other actions for infringement or other damages as are in its
reasonable business judgment necessary to protect the Collateral.  Borrower shall provide to Bank


 


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any information with respect thereto
requested by Bank.  Bank shall provide
at Borrower’s expense all necessary cooperation in connection with any such
suit, proceeding or action, including, without limitation, joining as a
necessary party.  Following Borrower’s
becoming aware thereof, Borrower shall notify Bank of the institution of, or
any adverse determination in, any proceeding in the United States Patent and
Trademark Office, or any United States, state or foreign court regarding
Borrower’s claim of ownership in any of such trademarks, its right to apply for
the same, or its right to keep and maintain such trademark rights.


 


5.             Power of Attorney.  Borrower grants Bank power of attorney,
having the full authority, and in the place of Borrower and in the name of
Borrower, from time to time in Bank’s discretion, after the occurrence of an
Event of Default, to take any action and to execute any instrument which Bank
may deem necessary or advisable to accomplish the purposes of this Agreement,
including, without limitation, as may be subject to the provisions of the Loan
Agreement:


 


(a)           To endorse Borrower’s name on all
applications, documents, papers and instruments necessary for Bank to use or
maintain the Collateral;


 


(b)           To ask, demand, collect, sue for, recover,
impound, receive and give acquittance and receipts for money due or 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 that Bank may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce Bank’s rights with
respect to any of the Collateral and to assign, pledge, convey or otherwise
transfer title in or dispose of the Collateral to any person.


 


7.             Right to Inspect.  Borrower grants to Bank and its employees
and agents the right to visit Borrower’s plants and facilities which
manufacture, inspect or store products sold under any of the trademarks, and to
inspect the products and quality control records relating thereto at reasonable
times during regular business hours.


 


8.             Events of Default.  Any of the following events shall be an
Event of Default:


 


(a)           Borrower fails to make any payment of
principal or interest or any other payment on any Obligation when due and
payable, by acceleration or otherwise under the loan documents; and


 


(b)           the occurrence of an Event of Default as
that term is defined in the Loan Agreement.


 


9.             Specific Remedies.  Upon the occurrence of any Event of Default:


 


(a)           Bank may cease advancing money or extending
credit to or for the benefit of Borrower under the Loan Agreement or under any
other agreement between Borrower and Bank.


 


(b)           Bank may declare all Obligations to be due
and payable immediately, whereupon they shall immediately become due and
payable without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by Borrower;


 


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(c)           After an Event of Default, Bank may set off
against the Obligations all Collateral, balances, credits, deposits, accounts
or moneys of Borrower then or thereafter held with Bank, including amounts
represented by certificates of deposit;


 


(d)           After an Event of Default, Bank may notify
licensees to make royalty payments on license agreements directly to Bank;


 


(e)           Bank may sell or assign the Collateral and
associated goodwill at public or private sale for such amounts, and at such
time or times as Bank deems advisable. 
Any requirement of reasonable notice of any disposition of the
Collateral shall be satisfied if such notice is sent to Borrower ten (10) days
prior to such disposition.  Borrower
shall be credited with the net proceeds of such sale only when they are
actually received by Bank, and Borrower shall continue to be liable for any
deficiency remaining after the Collateral is sold or collected;


 


(f)            If the sale is to be a public sale, Bank
shall also give notice of the time and place by publishing a notice one time at
least ten (10) calendar days before the date of the sale in a newspaper of
general circulation in the county in which the sale is to be held; and


 


(g)           To the maximum extent permitted by
applicable law, Bank may be the purchaser of any or all of the Collateral and
associated goodwill at any public sale and shall be entitled, for the purpose
of bidding and making settlement or payment of the purchase price for all or
any portion of the Collateral sold at any public sale, to use and apply all or
any part of the Obligations as a credit on account of the purchase price of any
Collateral payable by Bank at such sale.


 


10.          Governing Law.  All acts and transactions hereunder and the
rights and obligations of the parties hereto shall be governed, construed and
interpreted in accordance with the laws of the Commonwealth of Massachusetts.


 


IN WITNESS WHEREOF, the Borrower and Bank
have caused this Agreement to be executed by their duly authorized officers as
of the date first above written.


 


	
   

  	
  MICROFLUIDICS
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Irwin J.
  Gruverman, Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  BANKNORTH,
  N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Brant A.
  McDougall, Senior Vice President

  



 


COMMONWEALTH OF MASSACHUSETTS


 


Suffolk, Boston, ss.


 


On
this             day
of March, 2004, before me, the undersigned notary public, personally


 


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appeared Irwin J. Gruverman, as Chief
Executive Officer of Microfluidics Corporation, proved to me to be the person
whose name is signed on the preceding document, through satisfactory evidence
of identification, namely,  a
driver’s license issued by the State of Massachusetts, bearing the photographic
image of the face and signature of Irwin J. Gruverman, and acknowledged to me
that he signed it voluntarily for its stated purpose.


 


	
   

  	
   

  	
   

  
	
   

  	
  Michael J.
  Ruberto, Notary Public

  
	
   

  	
  My
  Commission Expires: June 13, 2008

  



 


COMMONWEALTH
OF MASSACHUSETTS


 


Suffolk, Boston ss.


 


On
this             day
of March, 2004, before me, the undersigned notary public, personally appeared
Brant A. McDougall, as Senior Vice President of Banknorth, N.A., a corporation,
proved to me to be the person whose name is signed on the preceding document,
through satisfactory evidence of identification, namely, my personal knowledge
of the identity of that individual, and acknowledged to me that he signed it
voluntarily for its stated purpose.


 


	
   

  	
   

  	
   

  
	
   

  	
  Michael J.
  Ruberto, Notary Public

  
	
   

  	
  My
  Commission Expires:   June 13, 2008

  



 


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SCHEDULE A


TO A TRADEMARK SECURITY AGREEMENT


BETWEEN


MICROFLUIDICS CORPORATION (BORROWER)


AND


BANKNORTH, N.A. (BANK)


DATED: 
MARCH 3, 2004


 


REGISTERED TRADEMARKS (USA)


 


 




	
  Trademark

  	
   

  	
  Registration No.

  	
   

  	
  Issue Date

  
	
  Microfluidizer

  	
   

  	
  1368735

  	
   

  	
  November 5, 1985

  






 


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