Security Agreement - Biopure Corp. and Pharmacia & Upjohn Inc.
SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of October 8, 1996, is between BIOPURE
CORPORATION, a Delaware corporation (the "Debtor"), and PHARMACIA & UPJOHN,
INC., a Delaware corporation (the "Secured Party").
WHEREAS, the Debtor has executed and delivered a Promissory Note, dated
the date hereof, in the principal amount of $9,000,000; and
WHEREAS, the parties hereto desire to secure the obligations of the Debtor
to the Secured Party under the Promissory Note.
NOW, THEREFORE, intending to be legally bound, the Debtor and the Secured
Party agree as follows:
1. Definitions.
Whenever used herein the following terms shall, unless the context
otherwise requires, have the following respective meanings:
(a) "Account" means any right to payment for goods sold or leased or for
services rendered which is not evidenced by an instrument or chattel paper.
(b) "Account Debtor" means the Person who is obligated on an Account or
Contract Right.
(c) "Collateral" means all of the following property of the Debtor,
whether now owned or hereafter acquired and whether now existing or hereafter
arising: (i) Inventory; (ii) Equipment; (iii) Fixtures, (iv) Leasehold
Improvements, (v) Documents of Title; (vi) Accounts and Contract Rights; (vii)
all guarantees of Accounts and Contract Rights and all other security held for
the payment or satisfaction thereof; (viii) the goods or the services the sale
or lease or performance of which give rise to any Account or Contract Right
including any returned goods; (ix) chattel paper and instruments; (x) General
Intangibles; (xi) any balance or share of any deposit, agency or other account
with any Person and any other amounts which may be owing from time to time by
any Person to the Debtor; (xii) all property of any nature whatsoever now or
hereafter in the possession of or assigned or pledged to any Person for any
purpose; and (xiii) all Proceeds of all of the foregoing.
<PAGE> 3
(d) "Contract Right" means any right to payment under a contract
(including, but not limited to, contracts for the sale or leasing of goods or
for the rendering of services) not yet earned by performance and not evidenced
by an instrument or chattel paper.
(e) "Document of Title" means a bill of lading, dock warrant, dock
receipt, warehouse receipt or order for the delivery of goods, and also any
other document which in the regular course of business or financing is treated
as adequately evidencing that the Person in possession of it is entitled to
receive, hold and dispose of the document and the goods it covers.
(f) "Equipment" means all goods (other than Inventory) used or brought for
use in business, including without limit equipment, machinery, furniture, tools
and motor vehicles and all accessions, parts, substitutions and replacements
with respect to each such item.
(g) "Fixtures" means goods that become so related to particular real
estate that an interest in them arises under real estate law.
(h) "General Intangibles" means things in actions, patents and patent
applications (including but not limited to those listed on Schedule 1 hereto),
copyrights, trademarks (including but not limited to those listed on Schedule 2
hereto), royalties, goodwill, literary rights and all other personal property
other than goods, Accounts, Contract Rights, Documents of Title, chattel paper,
instruments and money.
(i) "Interest Rate" means the rate of interest payable by the Debtor under
the Promissory Note.
(j) "Inventory" means tangible personal property held for sale or lease or
to be furnished under contracts of service, tangible personal property which has
been so leased or furnished, and raw materials, work in process and materials
used, produced or consumed in business, and shall include tangible personal
property sold on a sale or return basis, tangible personal property returned by
the purchaser following a sale thereof and tangible personal property
represented by Documents of Title. All equipment, accessories and parts at any
time attached or added to items of Inventory or used in connection therewith
shall be deemed to be part of the Inventory.
(k) "Leasehold Improvements" means all existing and future leasehold
improvements of the Debtor at the locations identified in Schedule 3 hereto.
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(l) "Liabilities" means all existing and future liabilities, whether
absolute or contingent, of the Debtor to the Secured Party of any nature
whatsoever arising hereunder or under the Promissory Note.
(m) "Person" means an individual, a corporation, a government or
governmental subdivision or agency or instrumentality, a business trust, an
estate, a trust, a partnership, a cooperative, an association, two or more
Persons having a joint or common interest, or any other legal or commercial
entity.
(n) "Proceeds" means whatever is received when Collateral or Proceeds of
Collateral is sold, exchanged, collected or otherwise disposed of and also
includes payments and rights to payment under any policies of insurance with
respect to any Collateral. The term also means the Account arising when the
right to payment is earned under a Contract Right.
(o) "Promissory Note" means the promissory note, dated the date hereof, in
the principal amount of $9,000,000, from the Debtor to the Secured Party.
2. Grant of Security.
To secure the payment, promptly when due, and the punctual performance of
all of the Liabilities, the Debtor hereby grants to the Secured Party a
continuing lien upon and security interest in all of the Collateral.
3. Records and Certifications.
(a) The Debtor shall faithfully keep complete and accurate books, records
and Equipment lists and make all necessary entries therein to reflect the
quantities, costs, current values and locations of its Inventory and Equipment
and the transactions and facts giving rise to its Accounts and Contract Rights,
including without limit the identity and address of all Account Debtors and all
payments, credits and adjustments to its Accounts and Contract Rights and the
Debtor shall keep the Secured Party fully and accurately informed as to the
locations of all such books, lists and records. The Debtor shall permit the
Secured Party's agents to have access to, and to copy, such books, lists and
records and to any other records pertaining to the Debtor's business.
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4. Maintenance of Equipment.
The Debtor shall care for all the Equipment and afford it suitable
preventative maintenance under a formal schedule of preventative maintenance
consistent with past practice and in a manner no less diligent than is normally
accepted in its industry. The Debtor will pay the cost of all repairs to or
maintenance of the Equipment and will not permit anything to be done that might
impair the value of any of the Equipment or any of the security intended to be
afforded by this Agreement. The Debtor will adopt and conscientiously adhere to
a well designed internal control system with respect to the Equipment capable of
permitting the Debtor and the Secured Party to identify readily at any time the
location and condition of each and every item of the Equipment.
5. Title, etc.
The Debtor has acquired absolute and exclusive title to each and every
item or unit of the Collateral free and clear of all liens, claims, security
interests and other encumbrances, except those created hereby in favor of the
Secured Party, and the Debtor will warrant and defend its title to the
Collateral, subject to the rights of the Secured Party, against the claims and
demands of all persons whomsoever. Without limiting the generality of the
foregoing, the Debtor will not pledge, assign or otherwise encumber, or permit
any liens or security interests to attach to, any of the Collateral, nor permit
any of the Collateral to be levied upon under any legal process, other than
those liens described above. Upon any breach of the foregoing covenant against
encumbrances, the Secured Party may, at its sole election but without obligation
to do so, discharge the encumbrance for the account of and without notice to the
Debtor, and all expenses incurred by the Secured Party in so doing, together
with interest thereon at the Interest Rate, shall be added to the Liabilities
and shall be payable by the Debtor on demand. Without the prior written consent
of the Secured Party in each case, the Debtor will not sell, exchange, lease,
lend, salvage, replace or otherwise dispose of any item or unit of the
Collateral or any of the Debtor's rights therein, except that so long as the
Debtor is not in default hereunder, the Debtor shall have the right in the
ordinary course of its business to process and sell its Inventory and to replace
worn or exhausted items or units of Equipment with new items or units of
Equipment of the same kind or character and having a market value equal to or
greater than the market value of the replaced items or units when new.
6. Taxes and Liens.
The Debtor will immediately notify the Secured Party in the event there
ever arises against any of the Collateral any lien, assessment or tax or other
liability, whether or not entitled to priority over the Secured Party's security
interest hereunder. In any such event, whether or not such notice is given, the
Secured Party shall (unless such lien, assessment,
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tax or other liability is the subject of an appeal by the Debtor and an
appropriate bond has been posted to stay the effect of any resulting lien) have
the right (but shall be under no obligation) to pay any tax or other liability
of the Debtor deemed by the Secured Party in good faith to affect the Secured
Party's interests hereunder. The Debtor shall repay to the Secured Party on
demand all sums which the Secured Party shall have paid under this section in
respect of taxes or other liabilities of the Debtor, with interest thereon at
the Interest Rate, and the Debtor's liability to the Secured Party for such
repayment with interest shall be included in the Liabilities. The Secured Party
shall be subrogated to the extent of any such payment by it to all the rights
and liens of the payee against the Debtor's assets. The Debtor shall furnish to
the Secured Party from time to time upon the Secured party's request proof
satisfactory to the Secured Party of the making of all payments or deposits
required by applicable law to be made with respect to amounts withheld by the
Debtor from wages and salaries of employees and amounts contributed by the
Debtor on account of federal, state or other income or wage taxes and amounts
due under the Federal Insurance Contributions Act or the Federal Unemployment
Tax Act or any similar legislation.
7. Insurance.
The Debtor shall bear all risk of loss, destruction and damage to any and
all of the Inventory and Equipment from any cause whatsoever at any time during
the term of this Agreement, and shall at its own cost and expense obtain and
keep in full force and effect, in kind and form reasonably satisfactory to the
Secured Party and with insurers of recognized standing in the financial
community or otherwise approved by the Secured Party, all risk of physical loss
or damage insurance covering the Inventory and Equipment wherever the same may
be, insuring against the risks of fire, explosion, theft and such other risks as
are customarily insured against by corporations engaged in the same business and
similarly situated with the Debtor (and specifically including vandalism,
malicious mischief coverage), in an amount or amounts usually carried by
corporations engaged in the same business and similarly situated with the
Debtor. All policies of such insurance shall be written for the benefit of the
Debtor and the Secured Party as the insureds, shall bear an endorsement in form
satisfactory to the Secured Party naming the Secured Party and the Debtor as
loss payees, as their respective interests may appear, and shall provide for at
least thirty (30) days' advance written notice to the Secured Party of any
cancellation. The Secured Party and the Debtor agree that all insurance proceeds
shall be payable to the Debtor if at the time of such payment no Event of
Default then exists and the Debtor delivers to the Secured Party a certificate
to such effect. If the Debtor fails to pay any premium on any such insurance,
the Secured Party shall have the right, but shall be under no obligation, to pay
such premium for the Debtor's account. The Debtor shall repay to the Secured
Party on demand all sums which the Secured Party shall have paid under this
section in respect of insurance premiums, with interest thereon at the Interest
Rate, and the
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Debtor's liability to the Secured Party for such repayment with interest shall
be included in the Liabilities. The Debtor hereby assigns to the Secured Party
any return of unearned premium which may be due upon the cancellation for any
reason whatsoever of any policy of insurance maintained in respect of the
Collateral and hereby directs the insurer to pay the Secured Party any amount so
due, except that the Secured Party shall have no right to any such amount unless
and until there exists an Event of Default. The Debtor's rights to receive
payment of any such return or unearned premium and the proceeds of any such
insurance shall constitute a part of the Collateral for all purposes hereof.
8. Control of and Access to Inventory and Equipment, Etc.
The Debtor shall maintain possession and control of its Inventory and
Equipment at all times, provided that upon the occurrence of an Event of Default
the Secured Party shall have the right to take possession of such Inventory and
Equipment or any portion thereof, and for the purpose of taking custody of the
Debtor's Inventory the Debtor agrees that upon request of the Secured Party it
will lease warehousing space in the Debtor's own premises to the Secured Party
and will erect such structures and post such signs as the Secured Party may
require in order to place such Inventory under the exclusive control of the
Secured Party. Notwithstanding any taking of possession by the Secured Party of
any Inventory or Equipment, the same shall remain at all times at the Debtor's
sole risk, and to the full extent permitted by law the Secured Party shall not
be responsible for any loss, damage or diminution in the value thereof. If any
of the Debtor's Inventory or Equipment is or becomes evidenced by a Document of
Title, the Secured Party may require the Debtor to promptly deliver the same to
the Secured Party appropriately endorsed to the order of the Secured Party. All
costs of transportation, packaging, custody, processing, storage, insurance and
salvage of any unit or item of the Debtor's Inventory or Equipment which may be
incurred by the Secured Party shall be promptly repaid to the Secured Party by
the Debtor together with interest thereon at the Interest Rate, and the Debtor's
liability to the Secured Party for such repayment with interest shall be
included in the Liabilities. If any item or unit of the Equipment is now or
hereafter the subject of a certificate of title or is required by law so to be,
upon request of the Secured Party the Debtor will take all steps necessary to
cause the Secured Party's lien or security interest therein to be noted on the
face of such certificate and shall thereafter deposit the original of such
certificate of title with the Secured Party. The Debtor will afford the Secured
Party's agents access to the Debtor's Inventory and to each item or unit of the
Debtor's Equipment from time to time upon request for purposes of examination,
inspection and appraisal and to verify the Debtor's records pertaining thereto.
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9. Notices of Loss, etc.
The Debtor will immediately notify the Secured Party of any of the
following: (i) any event causing any deterioration, loss or depreciation in
value of any material item, unit or portion of the Debtor's Equipment and of the
amount thereof; (ii) any event causing any material deterioration, loss or
depreciation in value of the Debtor's Inventory and the amount thereof; or (iii)
any material adverse change in the financial condition of any Account Debtor
whose total outstanding Accounts due the Debtor exceeds $25,000 or any material
adverse change in the collectibility of the Accounts taken as a whole.
10. Accounts and Contract Rights.
(a) The Secured Party hereby authorizes the Debtor to collect all Accounts
from the Account Debtors. The authority hereby given to the Debtor to collect
the Proceeds of Accounts may be terminated by the Secured Party at any time. The
Secured Party shall have the right at any time, acting if it so chooses in the
Debtor's name, to collect the Debtor's Accounts itself, to sell, assign,
compromise, discharge or extend the time for payment of any Account, to
institute legal action for the collection of any Account, and to do all acts and
things necessary or incidental thereto. The Debtor hereby ratifies all that the
Secured Party shall do by virtue hereof. The Secured Party may at any time,
without notice to the Debtor, notify any Account Debtor that the Account payable
by such Account Debtor has been assigned to the Secured Party and is to be paid
directly to the Secured Party. At the Secured Party's request the Debtor shall
so notify Account Debtors and shall indicate on all billings to Account Debtors
that payments thereon are to be made to the Secured Party. Without the written
consent of the Secured Party the Debtor shall not compromise, discharge, extend
the time for payment of or otherwise grant any indulgence or allowance with
respect to any Account.
(b) If any of the Debtor's Accounts or Contract Rights arises out of a
contract with the United States or any department, agency or instrumentality
thereof, the Debtor will immediately notify the Secured Party thereof in writing
and execute any instruments and take any steps required by the Secured Party in
order that the security interest of the Secured Party hereunder in the Debtor's
Contract Right under such contract and in all Accounts arising thereunder and in
the Proceeds thereof shall be perfected under the provisions of the Federal
Assignment of Claims Act.
(c) If any of the Debtor's Accounts is or becomes evidenced by a
promissory note, a trade acceptance or any other instrument for the payment of
money, the Debtor will promptly provide notice to the Secured Party of such
instrument and, upon the written request of the Secured Party, will promptly
deliver such instrument to the Secured Party appropriately endorsed to the order
of the Secured Party. Regardless of the form of such
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endorsement, the Debtor hereby waives presentment, demand, notice of dishonor,
protest and notice of protest and all other notices with respect thereto.
11. Significant Locations.
The Debtor represents and warrants to the Secured Party as follows: (i)
none of the Debtor's Equipment constitutes goods of a type normally used in more
than one jurisdiction for purposes of Section 9-103 of the Uniform Commercial
Code; (ii) the chief executive office of the Debtor is located at 11 Hurley
Street, Cambridge, Massachusetts, and such chief executive office, along with
the offices listed on Schedule 3 hereto, are the only locations where the Debtor
maintains a place of business and where the Debtor maintains the records with
respect to the Collateral; (iii) such locations are the only locations where the
Debtor stores or processes Inventory; and (iv) such locations are the only
locations where the Debtor keeps Equipment. The Debtor will notify the Secured
Party in writing prior to any change in the locations specified above and will
reimburse the Secured Party for the costs of any additional Uniform Commercial
Code filings requested by the Secured Party as a result thereof. If any of the
Collateral or any of the Debtor's records concerning any of the Collateral are
at any time to be located on premises leased by the Debtor, or any premises
owned by the Debtor subject to a mortgage or other lien, the Debtor will provide
notice of such intent to the Secured Party not less than 30 days prior to the
delivery of any such Collateral or records to such premises, and, upon the
written request of the Secured Party, the Debtor will promptly obtain and
deliver to the Secured Party an agreement in form satisfactory to the Secured
Party waiving the landlord's, mortgagee's or other lienholder's right to enforce
against the Debtor any claims for monies due under the lease, mortgage or other
lien by levy or distraint or other proceedings against the Collateral or the
Debtor's records concerning the same and assuring the Secured Party's access to
such Collateral and records to facilitate the Secured Party's exercise of its
rights to take possession thereof. The Debtor agrees to notify the Secured Party
promptly in the event of a change in the location of any place of business or
the establishment of any additional place of business of the Debtor.
12. Further Assurances.
The Debtor will execute and deliver to the Secured Party from time to time
all such other agreements, instruments and other documents (including without
limitation all requested financing and continuation statements) and do all such
other further acts and things as the Secured Party may reasonably request in
order to further evidence or carry out the intent of this Agreement or to
perfect the lien and security interest created hereby or intended so to be.
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13. Default and Remedies.
The Debtor shall be in default hereunder upon the occurrence of an "Event
of Default" as defined in the Promissory Note.
Upon the occurrence of any Event of Default which shall be continuing, (i)
unless the Secured Party shall elect otherwise, the entire unpaid amount of such
of the Liabilities as are not then otherwise due and payable shall become
immediately due and payable as provided in the Promissory Note and (ii) the
Secured Party may at its option exercise from time to time any and all rights
and remedies available to it under the Uniform Commercial Code or otherwise,
including the right to collect, assemble, receipt for, adjust, modify, repair,
refurnish or refurbish (but without any obligation to do so) or foreclose or
otherwise realize upon any of the Collateral and to dispose of any of the
Collateral at one or more public or private sales or other proceedings, and the
Debtor agrees that the Secured Party or its nominee may become the purchaser at
any such sale or sales. The Debtor agrees that thirty (30) days shall be
reasonable prior notice of the date of any public sale or other disposition of
all or any part of the Collateral, or of the date on or after which any private
sale or other disposition of the same may be made. All rights and remedies
granted the Secured Party hereunder or under any other agreement between the
Secured Party and the Debtor shall be deemed concurrent and cumulative and not
alternative, and the Secured Party may proceed with any number of remedies at
the same time or at different times until all the Liabilities are fully
satisfied. The exercise of any one right or remedy shall not be deemed a waiver
or release of or an election against any other right or remedy, and the Secured
Party may proceed against the Collateral and any other Collateral granted by the
Debtor to the Secured Party under any other agreement, all in any order and
through any available remedies. A waiver on any one occasion shall not be
construed as a waiver or bar on any future occasion. All property of any kind
held at any time by the Secured Party as Collateral shall stand as one general
continuing collateral security for all the Liabilities and may be retained by
the Secured Party as security until all the Liabilities are fully satisfied. The
Debtor will pay to the Secured Party on demand any and all expenses (including
attorneys' fees and legal expenses) which may have been incurred by the Secured
Party with interest at the Interest Rate (i) in the prosecution or defense of
any action growing out of or connected with the subject matter of this
Agreement, the Liabilities, the Collateral or any of the Secured Party's rights
therein or thereto; or (ii) in connection with the custody, preservation, use,
operation, preparation for sale or sale of any of the Collateral, the incurring
of all of which are hereby authorized to the extent the Secured Party deems the
same advisable. The Debtor's liability to the Secured Party for any such payment
with interest shall be included in the Liabilities. The enumeration of specific
Events of Default under the Promissory Note shall not compromise the demand
character of any Liability which by its terms is payable on demand and demand
may be made thereon at any time irrespective of the non-occurrence of any such
Event of Default, any provision hereof to the
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contrary notwithstanding. The Proceeds of any Collateral received by the Secured
Party at any time before or after default, whether from a sale or other
disposition of Collateral or otherwise, or the Collateral itself, may be applied
to the payment in full or in part of such of the Liabilities and in such order
and manner as the Secured Party may elect. The Debtor to the extent of its
rights in the Collateral waives and releases any right to require the Secured
Party to collect any of the Liabilities from any other of the Collateral or any
other collateral then held by the Secured Party under any theory of marshalling
of assets or otherwise.
14. Power of Attorney.
The Debtor hereby irrevocably appoints any officer, employee or agent of
the Secured Party as the Debtor's true and lawful attorney-in-fact with power,
upon the occurrence of an Event of Default, to (i) endorse the Debtor's name
upon any notes, checks, drafts, money orders, or other instruments of payment
that may come into the Secured Party's possession and which constitute proceeds
of any Collateral; (ii) sign and endorse the Debtor's name upon any documents of
title, invoices, freight or express bills, assignments, verifications and
notices in connection with any of the Collateral, and any instruments or
documents relating thereto or to the Debtor's rights therein; and (iii) execute
in the Debtor's name and file one or more financing statements covering the
Collateral. Any such attorney of the Debtor shall have full power to do any and
all things necessary to be done with respect to the above transactions as fully
and effectually as the Debtor might do, and the Debtor hereby ratifies all that
said attorney shall lawfully do or cause to be done by virtue hereof.
15. Miscellaneous.
(a) At no time during the past five years has the Debtor been known by or
used any name, including any trade or fictitious name, other than that set forth
in the premises of this Agreement.
(b) This Agreement shall commence on the date hereof and shall continue in
full force and effect so long as any of the Liabilities shall exist from time to
time. If after the discharge of all Liabilities the Debtor should subsequently
incur additional Liabilities, this Agreement shall automatically be revived and
thereafter continue in full force and effect until such time as the Debtor,
having no Liabilities then outstanding and not then being entitled to incur any
additional Liabilities, shall give written notice to the Secured Party of its
election to terminate this Agreement.
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(c) Statements of account rendered to the Debtor by the Secured Party
hereunder shall become final and be effective unless objection thereto is made
within fifteen (15) days after rendition.
(d) No modification or waiver of any provision hereof shall be effective
unless the same is in writing and signed by the party against whom its
enforcement is sought.
(e) This Agreement may be signed in any number of counterparts and by
different parties in separate counterparts, all with the same effect as if the
signatures were on the same counterpart, and all counterparts hereof, taken
together, shall constitute but one and the same Agreement.
(f) The covenants contained herein are all material and continuing, and
any breach of any of them shall constitute a material breach of this Agreement.
(g) Words of any gender shall include any other gender, and singular words
shall include the plural and vice versa, whenever the same is necessary to
produce a fair and meaningful construction.
(h) All the rights and remedies of the Secured Party hereunder shall be
cumulative with and not alternative to or in lieu of the Secured Party's rights
and remedies under any other agreement or agreements.
(i) This Agreement shall bind and inure to the benefit of the parties and
their respective successors and assigns, except that the Debtor shall not assign
any of its respective rights hereunder without the prior written consent of the
other party hereto.
(j) Captions in this Agreement are included for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose.
(k) Any provision hereof which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without affecting the validity or
enforceability of the remainder of this Agreement or the validity or
enforceability of such provision in any other jurisdiction.
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(l) All issues arising hereunder shall be governed by the laws of the
State of New York.
IN WITNESS WHEREOF, this Agreement has been duly executed under due
authorization on the day and year first set forth above.
BIOPURE CORPORATION
By: /s/ Brian A. Lajoie
------------------------------
Title: V.P.-Finance
PHARMACIA & UPJOHN, INC.
By: /s/ Robert G. Kramer
----------------------------------
Title: Director Corporate Treasury
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SCHEDULE 1
Patents and Patent Applications
See Attached
<PAGE> 15
STATUS OF BIOPURE CORPORATION DISCLOSURES - U.S.
<TABLE>
<CAPTION>
====================================================================================================================================
Filing Date Application
Docket No./ or or Exp.
Attorney Inventor(s) Title Status Issue Date Patent Number Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
BP86-01 Rausch Extra Pure Semi-Synthetic Blood AB 11/10/86 06/928,345
(DEB) Feola Substitute
BP86-01A Rausch Extra Pure Semi-Synthetic Blood AB 10/13/87 07/107,421
(DEB) Feola Substitute
BP86-01AA Rausch Extra Pure Semi-Synthetic Blood P 01/28/92 5,084,558 01/28/09
(DEB) Feola Substitute
BP86-01AAA Rausch Extra Pure Semi-Synthetic Blood P 03/22/94 5,296,465 03/22/11
(NSP/DEB) Feola Substitute
BP86-01A4 Rausch Ultra Pure Hemoglobin Solutions F 03/11/94 08/209,949
(RTC/NSP/DEB) Feola and Blood Substitutes
(INCLUDES BP94-01)
BP86-01A5 Rausch Ultra Pure Hemoglobin Solutions AD
(RTC/NSP/DEB) Feola and Blood Substitutes
BP89-01 Wong Enzymatic Production of 7-Amino AB 04/04/89 07/333,546
(RWW/DEB) Shen Cephalosporanic Acid
BP89-01A Wong Enzymatic Production of 7-Amino I
(RWW/DEB) Shen Cephalosporanic Acid
BP89-01F Wong Enzymatic Production of 7-Amino AB 04/21/92 07/873,596
(RWW/DEB) Shen Cephalosporanic Acid
BP89-01F2 Wong Enzymatic Production of 7-Amino AB 01/21/94 08/184,773
(RWW/DEB) Shen Cephalosporanic Acid
BP89-01F3 Wong Enzymatic Production of 7-Amino F 11/02/94 08/333,623
(RWW/DEB) Shen Cephalosporanic Acid
BP89-02 Templeman Method for Culturing Cells Using AB 06/09/89 07/364,696
(RWW/DEB) Rausch Hemoglobin As A Cell Culture Medium
Lin Component
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
ATTORNEY CODE: STATUS CODE: DOCKET LETTER CODE:
<S> <C> <C> <C>
DEB = David E. Brook AB = Abandoned F = Filed and Pending
NSP = N. Scott Pierce AD = Active Disclosure H = Hold Z, X, Y = Divisional
RTC = Robert T. Conway AF = Approved for Filing I = Inactive
EWM = Elizabeth W. Mata AL = Allowed P = Patented A = Continuation or C-I-P
SMM = Steven M. Mills AS = Approved for Search S = Searched
RWW = Richard W. Wagner C = Combined with T = Transferred Prime (') = File Wrapper
DI = Draft in Preparation TBA = To be Abandoned Continuation
DP = Draft Prepared
F = File Wrapper
Continuation
</TABLE>
UPDATED: August 30, 1996 CONFIDENTIAL Page 1
------------------------
BP/DFCI.US
<PAGE> 16
STATUS OF BIOPURE CORPORATION DISCLOSURES - U.S.
<TABLE>
<CAPTION>
====================================================================================================================================
Filing Date Application
Docket No./ or or Exp.
Attorney Inventor(s) Title Status Issue Date Patent Number Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
BP89-02' Templeman Method for Culturing Cells Using AB 05/29/92 07/891,682
(RWW/DEB) Rausch Hemoglobin As A Cell Culture Medium
Lin Component
BP89-03 Templeman Balanced Parenteral Vehicle for Ex I
(RWW/DEB) Vivo Perfusion With Purified
Hemoglobin
BP89-04 Templeman Purified Hemoglobin Solution to I
(RWW/DEB) Wong Promote Microbial Growth
Shen
BP89-05 Filbey Sample Valve for Sterile Processing P 03/17/92 5,095,765 06/15/10
(NSP/DEB) Boulton
BP91-02 Rausch Static Mixer Reactor Utilized for I
(NSP/DEB) Laccetti Bovine Hemoglobin Polymerizations
Light
Gawryl
BP91-03 Light Method for Separating Unmodified F 06/07/95 08/477,916
(EWM/NSP/DEB) Gawry Hemoglobin From Cross-Linked
Laccetti Hemoglobin
Houtchens
BP91-04 Gawryl Method of Reducing Leucocyte I
(NSP/DEB) Activation in Blood Substitutes
BP91-05 Highly Cross-Linked Hemoglobin Blood I
(NSP/DEB) Substitute
BP91-06 Rausch Method of Manufacturing Blood I Filed as
(NSP/DEB) Gawryl Substitutes BP94-03A2 6/7/95
BP92-01 Houtchens Separation of Erythrocytes from I
(NSP/DEB) Bovine Whole Blood
BP92-02 Houtchens Separation of Carbonic Anhydrase from I Filed as
(NSP/DEB) Patrick BP94-03AD 6/7/95
Hemoglobin
BP92-03 Wong Simplified Process for Myelin Protein I
(EWM/NSP/DEB) Purification from Crude Calf Brain
Tissue
BP92-04 Wong Use of Celite I
(NSP/DEB) Shen
Baqai
Conlon
</TABLE>
UPDATED: August 30, 1996 CONFIDENTIAL Page 2
------------------------
BP/DFCI.US
<PAGE> 17
STATUS OF BIOPURE CORPORATION DISCLOSURES - U.S.
<TABLE>
<CAPTION>
====================================================================================================================================
Filing Date Application
Docket No./ or or Exp.
Attorney Inventor(s) Title Status Issue Date Patent Number Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
BP92-05 Wong Use of Amberlite IR-35 I
(NSP/DEB) Shen
Baqai
Conlon
BP93-01 Wong Chlorination of Cephalexin with F 12/20/94 08/360,143
(RWW/DEB) Shen Chloroperoxidase from Rathayibacter
Chen
BP93-02 Light Polymerized Hemoglobin Blood I (Filed as BP94-03AB)
(NSP/DEB) Laccetti Substitute Prepared by Glutaraldehyde
Gauryl Crosslinking Modified With N-Acetyl
Cysteine
BP93-03 Jacobs, Jr. Hemodilution Administration of I
(NSP/DEB) Hemoglobin Solutions
BP93-04 Jacobs Oxygen Conductance by Hemoglobin I
(NSP/DEB) Solutions
BP93-05 Jacobs Hemoglobin Blood Substitutes in AB 02/03/94 08/191,418
(NSP/DEB) Extended Preoperative Autologous
Blood Donation
BP93-06 Jacobs Use of Hemoglobin Blood Substitutes AD
(EWH/NSP/DEB) Lee as Hematinics
BP93-07 Jacobs Anti-Cholinergic Treatment for Blood I
(NSP/DEB) Substitute Side Effects
BP94-01 Mechanical Lysing of Erythrocytes I (Filed as BP86-01A4)
(NSP/DEB)
BP94-02 Foil Overwrapped Plastic Storage I (Filed as BP94-03AC)
(NSP/DEB) Containers for Hemoglobin Blood
Substitutes
BP94-03 Jacobs Method for Oxygenating Tissue Having F 03/23/95 08/409,337
(EWM/NSP/DEB) Rausch Reduced Red Blood Cell Flow
BP94-03A Rausch Method for Producing Ultrapure Stable F 06/02/95 08/458,916
(EWM/NSP/DEB) Gawryl Polymerized Hemoglobin Blood-
Houtchens Substitute
Laccetti
Light
</TABLE>
UPDATED: August 30, 1996 CONFIDENTIAL Page 3
------------------------
BP/DFCI.US
<PAGE> 18
STATUS OF BIOPURE CORPORATION DISCLOSURES - U.S.
<TABLE>
<CAPTION>
====================================================================================================================================
Filing Date Application
Docket No./ or or Exp.
Attorney Inventor(s) Title Status Issue Date Patent Number Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
BP94-03A2 Rausch Method for Producing A Stable F 06/07/95 08/484,775
(EWM/NSP/DEB) Gawryl Polymerized Hemoglobin Blood-
Houtchens Substitute
Laccetti (Includes BP91-06)
Light
BP94-03A2Z Rausch Method for Producing a Stable F 06/07/95 08/478,004
(EWM/NSP/DEB) Gawryl Polymerized Hemoglobin Blood-
Houtchens Substitute
Laccetti
Light
BP94-03AB Light Stable Polymerized Hemoglobin and Use F 06/07/95 08/487,288
(EWM/NSP/DEB) Gawryl Thereof
Laccetti (Includes BP93-02)
BP94-03ABA Light Stable Polymerized Hemoglobin and Use F 03/22/96 08/620,296
(EWM/NSP/DEB) Gawryl Thereof
Laccetti (Includes BP93-02)
Houtchens
BP94-03AC Gawryl Method for Preserving a Hemoglobin F 06/07/95 08/471,583
(EWM/NSP/DEB) Houtchens Blood Substitute
Light (Includes BP94-02)
BP94-03AD Houtchens Method for Separating Hemoglobin F 06/07/95 08/473,497
(EWM/NSP/DEB) (Includes BP92-02)
BP94-04 Wong Enzymatic Halogenation of Cephalexin F 12/20/94 08/360,149
(RWW/DEB) Shen to Produce Cefaclor and Other
Chen Halogenated Products
BP95-01 Wertz Separation of Polymerized From F 06/07/95 08/475,899
(RTC/NSP/DEB) Gawryl Unpolymerized Hemoglobin on
Hydroxyapatite Using HPLC
BP95-02 Dube Determination of Cyclohexanone I
(NSP/DEB) Wetz Derivatized With 2-4 Dinitiophenyl
Hydrazine and Separated by RPHPLC-UV
BP95-03 Paradis Comb Needle AD
(SMM/NSP)
BP95-04 Paradis Needle with Side Lumen AD
(SMM/NSP)
</TABLE>
UPDATED: August 30, 1996 CONFIDENTIAL Page 4
------------------------
BP/DFCI.US
<PAGE> 19
STATUS OF BIOPURE CORPORATION DISCLOSURES - U.S.
<TABLE>
<CAPTION>
====================================================================================================================================
Filing Date Application
Docket No./ or or Exp.
Attorney Inventor(s) Title Status Issue Date Patent Number Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
BP96-01 Gawryl A Method For Chromatographic Removal F 07/01/96 08/673,147
(DEB/NSP) Houtchens of Prions
Light
BP96-02 Jacobs, Jr. Method for Increasing Tissue Oxygen AD
(EWM/NSP) Consumption with Hemoglobin Solution
</TABLE>
UPDATED: August 30, 1996 CONFIDENTIAL Page 5
------------------------
BP/DFCI.US
<PAGE> 20
CASES LICENSED TO BIOPURE
<TABLE>
<CAPTION>
====================================================================================================================================
Filing Date Application
Docket No./ or or Exp.
Attorney Inventor(s) Title Status Issue Date Patent Number Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
DFCI-210 Teicher Improved Method for Treating a Tumor AB 05/14/91 07/699,769
(DEB) Rausch with a Chemotherapeutic Agent
Hopkins II
DFCI-210A Teicher Method for Treating a Tumor with a F 07/20/93 08/094,501
(EWM/NSP/DEB) Rausch Chemotherapeutic Agent
Hopkins II
DFCI-210A2 Teicher Method for Treating a Tumor with a F 06/07/95 08/477,110
(EWM/NSP/DEB) Rausch Chemotherapeutic Agent
Hopkins II
DFCI-212 Teicher Improved Method for Treating a Tumor P 03/22/94 5,295,944 05/14/11
(DEB) Rausch with Ionizing Radiation
Hopkins II
</TABLE>
UPDATED: August 30, 1996 CONFIDENTIAL Page 6
------------------------
BP/DFCI.US
<PAGE> 21
STATUS OF BIOPURE CORPORATION DISCLOSURES - FOREIGN
<TABLE>
<CAPTION>
================================================================================================================================
Docket Application/ Filing/ Stat- Patent Issued Exp.
No. Country Publication No. Pub Date Title us No. Date Date
================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BP86-01 PCT PCT/US87/02967 11/10/87 Extra Pure Semi- PC
Synthetic Blood
Substitute
(Designating: Australia, Brazil, Finland, Japan)
BP86-01A Australia 10,871/88 11/10/87 Extra Pure Semi- P 622,610 10/16/92 11/10/03
Synthetic Blood
Substitute
BP86-01A Canada 551,356 11/09/87 Extra Pure Semi- P 1,302,009 12/29/92 12/29/09
Synthetic Blood
Substitute
BP86-01A Japan 500779/88 11/10/87 Extra Pure Semi- A
Synthetic Blood
Substitute
BP86-01AA Austria 87116556.9 11/10/87 Extra Pure Semi- P 0277289 02/25/92 11/10/07
Synthetic Blood
Substitute
BP86-01AA Belgium 87116556.9 11/10/87 Extra Pure Semi- P 0277289 02/25/92 11/10/07
Synthetic Blood
Substitute
BP86-01AA EPO 87116556.9 11/10/87 Extra Pure Semi- P 0277289 02/25/92 11/10/07
Synthetic Blood
Substitute
(Designating: Austria, Belgium, France, Germany, Great Britain, Greece,
Italy, Luxembourg, Netherlands, Spain and Sweden,
Switzerland/Liechtenstein)
BP86-01AA France 87116556.9 11/10/87 Extra Pure Semi- P 0277289 02/25/92 11/10/07
Synthetic Blood
Substitute
BP86-01AA Germany 87116556.9 11/10/87 Extra Pure Semi- P 0277289 02/25/92 11/10/07
Synthetic Blood
Substitute
BP86-01AA Great Britain 87116556.9 11/10/87 Extra Pure Semi- P 0277289 02/25/92 11/10/07
Synthetic Blood
Substitute
--------------------------------------------------------------------------------------------------------------------------------
</TABLE>
A = Active AB = Abandoned P = Patented PC = Processing Complete
UPDATED: August 30, 1996 CONFIDENTIAL Page 7
------------------------
BP.FOR
<PAGE> 22
STATUS OF BIOPURE CORPORATION DISCLOSURES - FOREIGN
<TABLE>
<CAPTION>
================================================================================================================================
Docket Application/ Filing/ Stat- Patent Issued Exp.
No. Country Publication No. Pub Date Title us No. Date Date
================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BP86-01AA Greece 87116556.9 11/10/87 Extra Pure Semi- P 0277289 02/25/92 11/10/07
Synthetic Blood
Substitute
BP86-01AA Italy 87116556.9 11/10/87 Extra Pure Semi- P 0277289 02/25/92 11/10/07
Synthetic Blood
Substitute
BP86-01AA Luxembourg 87116556.9 11/10/87 Extra Pure Semi- P 0277289 02/25/92 11/10/07
Synthetic Blood
Substitute
BP86-01AA Mexico 923537 06/26/92 Extra Pure Semi- P 180196 11/22/95 06/26/12
Synthetic Blood
Substitute
BP86-01AA Netherlands 87116556.9 11/10/87 Extra Pure Semi- P 0277289 02/25/92 11/10/07
Synthetic Blood
Substitute
BP86-01AA Spain 87116556.9 11/10/87 Extra Pure Semi- P 0277289 02/25/92 11/10/07
Synthetic Blood
Substitute
BP86-01AA Sweden 87116556.9 11/10/87 Extra Pure Semi- P 0277289 02/25/92 11/10/07
Synthetic Blood
Substitute
BP86-01AA Switzerland/ 87116556.9 11/10/87 Extra Pure Semi- P 0277289 02/25/92 11/10/07
Liechtenstein Synthetic Blood
Substitute
BP89-01 PCT PCT/US90/01696 03/30/90 Enzymatic PC
WO 90/12110 10/18/90 Production of 7-
Amino
Cephalosporanic
Acid
BP89-01 Austria 90906671.4 03/30/90 Enzymatic P 0465600 06/07/95 03/30/10
Production of 7-
Amino
Cephalosporanic
Acid
--------------------------------------------------------------------------------------------------------------------------------
</TABLE>
A = Active AB = Abandoned P = Patented PC = Processing Complete
UPDATED: August 30, 1996 CONFIDENTIAL Page 8
------------------------
BP.FOR
<PAGE> 23
STATUS OF BIOPURE CORPORATION DISCLOSURES - FOREIGN
<TABLE>
<CAPTION>
================================================================================================================================
Docket Application/ Filing/ Stat- Patent Issued Exp.
No. Country Publication No. Pub Date Title us No. Date Date
================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BP89-01 Belgium 90906671.4 03/30/90 Enzymatic P 0465600 06/07/95 03/30/10
Production of 7-
Amino
Cephalosporanic
Acid
BP89-01 Canada 2,049,958.3 03/30/90 Enzymatic A
Production of 7-
Amino
Cephalosporanic
Acid
BP89-01 EPO 90906671.4 03/30/90 Enzymatic A 0465600 06/07/95 03/30/10
Production of 7-
Amino
Cephalosporanic
Acid
(Designating: Austria, Belgium, Denmark, France, Germany, Great Britain,
Italy, Luxembourg, Netherlands, and Sweden, Switzerland/Liechtenstein)
BP89-01 France 90906671.4 03/30/90 Enzymatic P 0465600 06/07/95 03/30/10
Production of 7-
Amino
Cephalosporanic
Acid
BP89-01 Germany 90906671.4 03/30/90 Enzymatic P 0465600 06/07/95 03/30/10
Production of 7-
Amino
Cephalosporanic
Acid
BP89-01 Great Britain 90906671.4 03/30/90 Enzymatic P 0465600 06/07/95 03/30/10
Production of 7-
Amino
Cephalosporanic
Acid
BP89-01 Japan 506422/90 03/30/90 Enzymatic A
Production of 7-
Amino
Cephalosporanic
Acid
--------------------------------------------------------------------------------------------------------------------------------
</TABLE>
A = Active AB = Abandoned P = Patented PC = Processing Complete
UPDATED: August 30, 1996 CONFIDENTIAL Page 9
------------------------
BP.FOR
<PAGE> 24
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BP89-01 Netherlands 90906671.4 03/30/90 Enzymatic P 0465600 06/07/95 03/30/10
Production of 7-
Amino
Cephalosporanic
Acid
BP89-01 S. Korea 701280/91 03/30/90 Enzymatic A
Production of 7-
Amino
Cephalosporanic
Acid
BP89-01 Switzerland 90906671.4 03/30/90 Enzymatic P 0465600 06/07/95 03/30/10
Production of 7-
Amino
Cephalosporanic
Acid
BP89-01 Taiwan 79102661 04/04/90 Enzymatic P 45786 07/11/91 03/11/06
Production of 7-
Amino
Cephalosporanic
Acid
BP91-03 PCT PCT/US96/09251 06/05/96 Separating A
Unmodified
Hemoglobin from
Cross-Linked
Hemoglobin
(Designating: All but U.S.)
BP94-03M PCT PCT/US96/04030 03/22/96 Stable A
Polymerized
Hemoglobin
Blood-Substitute
(Designating: EP, Australia, Canada, Japan, New
Zealand)
BP94-04 PCT PCT/US95/16547 12/19/95 Enzymatic A
WO 96/19569 06/27/96 Production of
Halogenated
Cephalosporin
--------------------------------------------------------------------------------------------------------------------------------
</TABLE>
A = Active AB = Abandoned P = Patented PC = Processing Complete
UPDATED: August 30, 1996 CONFIDENTIAL Page 4
------------------------
BP.FOR
A = Active AB = Abandoned P = Patented PC = Processing Complete
UPDATED: August 30, 1996 CONFIDENTIAL Page [ILLEGIBLE]
------------------------
BP.FOR
<PAGE> 25
SCHEDULE 2
Trademarks
<TABLE>
<CAPTION>
Mark Reg. No. Reg. Date
---- -------- ---------
<S> <C> <C>
Biopure 1,362,777 October 1, 1985
Hemopure 1,509,885 October 25, 1988
Oxyglobin 1,507,754 October 11, 1988
Oxypure 1,572,797 December 26, 1989
</TABLE>
<PAGE> 26
SCHEDULE 3
Significant Locations
Biopure Corporation
674 Souder Road
Soudertown, Pennsylvania 18964
Biopure Corporation
4 Progress Drive
Dover, New Hampshire 03820
Biopure Corporation
11 Hurley Street
Cambridge, Massachusetts 02141
Biopure Corporation
31-35 Hurley Street
Cambridge, Massachusetts 02141
Biopure Corporation
37-39 Hurley Street
Cambridge, Massachusetts 02141
Biopure Corporation
16-22 & 26 Spring Street
Cambridge, Massachusetts 02141