EXHIBIT 10.8.3
INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT is entered into as of July
31, 2004 by and between SILICON VALLEY BANK ("Bank") and ODIMO INCORPORATED
("Grantor").
RECITALS
A. Bank has agreed to make certain advances of money and to extend certain
financial accommodation to Odimo Incorporated, D.I.A. Marketing, Inc. and
Grantor (the "Loans") in the amounts and manner set forth in that certain Loan
and Security Agreement by and between Bank, Odimo Incorporated, D.I.A.
Marketing, Inc. and Grantor of even date herewith (as the same may be amended,
modified or supplemented from time to time, the "Loan Agreement"; capitalized
terms used herein are used as defined in the Loan Agreement). Bank is willing to
make the Loans to Grantor, but only upon the condition, among others, that
Grantor shall grant to Bank a security interest in certain Copyrights,
Trademarks, Patents, and Mask Works to secure the obligations of Grantor under
the Loan Agreement.
B. Pursuant to the terms of the Loan Agreement, Grantor has granted to
Bank a security interest in all of Grantor's right, title and interest, whether
presently existing or hereafter acquired, in, to and under all of the
Collateral.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound, as collateral security
for the prompt and complete payment when due of its obligations under the Loan
Agreement, Grantor hereby represents, warrants, covenants and agrees as follows:
AGREEMENT
To secure its obligations under the Loan Agreement, Grantor grants and
pledges to Bank a security interest in all of Grantor's right, title and
interest in, to and under its Intellectual Property Collateral (including
without limitation those Copyrights, Patents, and Trademarks listed on Exhibits
A, B, and C hereto), and including without limitation all proceeds thereof (such
as, by way of example but not by way of limitation, license royalties and
proceeds of infringement suits), the right to xxx for past, present and future
infringements, all rights corresponding thereto throughout the world and all
re-issues, divisions continuations, renewals, extensions and
continuations-in-part thereof.
This security interest is granted in conjunction with the security
interest granted to Bank under the Loan Agreement. The rights and remedies of
Bank with respect to the security interest granted hereby are in addition to
those set forth in the Loan Agreement and the other Loan Documents, and those
which are now or hereafter available to Bank as a matter of law or equity. Each
right, power and remedy of Bank provided for herein or in the Loan Agreement or
any of the Loan Documents, or now or hereafter existing at law or in equity
shall be cumulative and
concurrent and shall be in addition to every right, power or remedy provided for
herein and the exercise by Bank of any one or more of the rights, powers or
remedies provided for in this Intellectual Property Security Agreement, the Loan
Agreement or any of the other Loan Documents, or now or hereafter existing at
law or in equity, shall not preclude the simultaneous or later exercise by any
person, including Bank, of any or all other rights, powers or remedies.
IN WITNESS WHEREOF, the parties have caused this Intellectual Property
Security Agreement to be duly executed by its officers thereunto duly authorized
as of the first date written above.
GRANTOR:
Address of Grantor: ODIMO INCORPORATED
--------------------------------
-------------------------------- By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President
BANK:
Address of Bank: SILICON VALLEY BANK
--------------------------------
--------------------------------
-------------------------------- By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Senior VP
EXHIBIT A
Copyrights
Registration/ Registration/
Application Application
Description Number Date
----------- ------------- -------------
How to Buy a Diamond TX-5-424-527 08/03/2001
E- Diamond Buying Kit TX-5-625-281 08/03/2001
XxxxxxxXxxxx.Xxx TXu-906-235 09/02/2001
XxxxxxxXxxxx.Xxx TXu-906-236 02/12/2001
World of Xxxxxxx.Xxx Not available 07/28/2004
Xxxxxxx.Xxx Not available 07/28/2004
Xxxxxxx.Xxx Not available 07/28/2004
EXHIBIT B
Patents
Registration/ Registration/
Application Application
Description Number Date
----------- ------------- -------------
None
EXHIBIT C
Trademarks
Registration/ Registration/
Application Application
Xxxx Number Date Country Status
---- ------------- ------------- ------- ------
XXXXXXX.XXX 78/077388 8/03/2001 United States Abandoned
WORLD OF WATCHES & Design 2634553 10/15/2002 United States Registered
A PERK FOR YOUR WORK 76/156667 10/31/2000 United States Abandoned
O Stylized 2527126 1/08/2002 United States Registered
XXXXXXX.XXX AN ODIMO COMPANY & Design 76/112031 08/16/2000 United States Abandoned
XXXXXXX.XXX AN ODIMO COMPANY 76/115081 8/16/2000 United States Abandoned
AS Stylized 2469836 07/17/2001 United States Registered
1-888-DIAMOND 2551294 03/19/2002 United States Registered
WORLD OF XXXXXXX.XXX 2482102 8/28/2001 United States Registered
XXXXX.XXX 76/012544 3/28/2002 United States Abandoned
TRUST, LOVE, GIVE 75/911497 02/03/2000 United States Abandoned
XXXXX.XXX 75/907204 02/02/2000 United States Abandoned
THE POWER TO TRUST 75/907203 02/02/2000 United States Abandoned
XXXXXXXXXXXX.XXX 2487016 09/11/2001 United States Registered
1-888-WATCHES 2513534 11/27/2001 United States Registered
WORLD OF WATCHES 2401981 11/7/2000 United States Registered
A & Design 2454068 5/22/2001 United States Registered
XXXXXXX.XXX 78/161279 09/06/2002 United States Pending
ASHFORD 78/161282 09/06/2002 United States Pending
A & Design 75/806672 09/22/1999 Xxxxxx Xxxxxx Xxxxxxx
XXXXXXX.XXX 00/000000 0/000000 Xxxxxx Xxxxxx Abandoned
XXXXXXX.XXX & Design 2000-078158 07/13/2000 Japan Pending
WORLD OF WATCHES 4514620 10/19/2001 Japan Registered
WORLD OF XXXXXXX.XXX 4543977 02/15/2002 Japan Registered
XXXXXXX.XXX & Design 2236556 06/01/2001 United Kingdom Registered
WORLD OF WATCHES 2240221 09/21/2001 United Kingdom Registered
WORLD OF XXXXXXX.XXX 2240220 11/23/2001 United Kingdom Registered
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This Intellectual Property Security Agreement is entered into as of
July __, 2004 by and between SILICON VALLEY BANK ("Bank") and XXXXXXX.XXX, INC.
("Grantor").
RECITALS
A. Bank has agreed to make certain advances of money and to extend
certain financial accommodation to Odimo Incorporated, D.I.A. Marketing, Inc.
and Grantor (the "Loans") in the amounts and manner set forth in that certain
Loan and Security Agreement by and between Bank, Odimo Incorporated, D.I.A.
Marketing, Inc. and Grantor of even date herewith (as the same may be amended,
modified or supplemented from time to time, the "Loan Agreement"; capitalized
terms used herein are used as defined in the Loan Agreement). Bank is willing to
make the Loans to Grantor, but only upon the condition, among others, that
Grantor shall grant to Bank a security interest in certain Copyrights,
Trademarks, Patents, and Mask Works to secure the obligations of Grantor under
the Loan Agreement.
B. Pursuant to the terms of the Loan Agreement, Grantor has granted to
Bank a security interest in all of Grantor's right, title and interest, whether
presently existing or hereafter acquired, in, to and under all of the
Collateral.
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, and intending to be legally bound, as collateral
security for the prompt and complete payment when due of its obligations under
the Loan Agreement, Grantor hereby represents, warrants, covenants and agrees as
follows:
AGREEMENT
To secure its obligations under the Loan Agreement, Grantor grants and
pledges to Bank a security interest in all of Grantor's right, title and
interest in, to and under its Intellectual Property Collateral (including
without limitation those Copyrights, Patents, and Trademarks listed on Exhibits
A, B, and C hereto), and including without limitation all proceeds thereof (such
as, by way of example but not by way of limitation, license royalties and
proceeds of infringement suits), the right to xxx for past, present and future
infringements, all rights corresponding thereto throughout the world and all
re-issues, divisions continuations, renewals, extensions and
continuations-in-part thereof.
This security interest is granted in conjunction with the security
interest granted to Bank under the Loan Agreement. The rights and remedies of
Bank with respect to the security interest granted hereby are in addition to
those set forth in the Loan Agreement and the other Loan Documents, and those
which are now or hereafter available to Bank as a matter of law or equity. Each
right, power and remedy of Bank provided for herein or in the Loan Agreement or
any of the Loan Documents, or now or hereafter existing at law or in equity
shall be cumulative and concurrent and shall be in addition to every right,
power or remedy provided for herein and the
exercise by Bank of any one or more of the rights, powers or remedies provided
for in this Intellectual Property Security Agreement, the Loan Agreement or any
of the other Loan Documents, or now or hereafter existing at law or in equity,
shall not preclude the simultaneous or later exercise by any person, including
Bank, of any or all other rights, powers or remedies.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
2
IN WITNESS WHEREOF, the parties have caused this Intellectual Property
Security Agreement to be duly executed by its officers thereunto duly authorized
as of the first date written above.
GRANTOR:
Address of Grantor: XXXXXXX.XXX, INC.
--------------------------------
-------------------------------- By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: President
BANK:
Address of Bank: SILICON VALLEY BANK
--------------------------------
-------------------------------- By: /s/ Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior VP
3
EXHIBIT A
Copyrights
Registration/ Registration/
Application Application
Description Number Date
----------- ------------- -------------
None
EXHIBIT B
Patents
Registration/ Registration/
Application Application
Description Number Date
----------- ------------- -------------
Electronic Commerce Product Pricing And Selection System
And Method 09919420 07/31/2001
EXHIBIT C
Trademarks
Registration/ Registration/
Application Application
Xxxx Number Date Country Status
---- ------------- ------------- ------- ------
ASHFORD 76/098997 07/28/2000 United States Abandoned
ASHFORD 76/094178 7/21/2000 United States Abandoned
ASHFORD 76/094179 07/21/2000 United States Abandoned
ASHFORD 76/094177 07/21/2000 United States Abandoned
ASHFORD 76/094180 07/21/2000 United States Abandoned
XXXXXXX.XXX 75/806674 09/22/1999 United States Abandoned
ASHFORD 75/806673 09/22/1999 United States Abandoned
ASHFORD 75/980854 09/22/1999 United States Abandoned
XXXXXXX.XXX 75/980895 09/22/1999 United States Abandoned
A & Design 75/797795 09/13/1999 United States Abandoned
A & Design 75/797794 09/13/1999 United States Abandoned
A & Design 75/797796 09/13/1999 United States Abandoned
A & Design 75/797793 09/13/1999 United States Abandoned
ZENITH 75/777441 08/17/1999 United States Abandoned
XXXXXXX.XXX 75/699918 05/05/1999 United States Abandoned
ASHFORD 75/699919 05/05/1999 United States Abandoned
XXXXXXX.XXX 75/699917 05/05/1999 United States Abandoned
XXXXXXX.XXX 75/699921 05/05/1999 United States Abandoned
ASHFORD 75/699924 05/05/1999 United States Abandoned
ASHFORD 75/699916 05/05/1999 United States Abandoned
ASHFORD 75/699920 05/05/1999 United States Abandoned
XXXXXXX.XXX 75/699922 05/05/1999 United States Abandoned
XXXXXXX.XXX 75/699923 05/05/1999 United States Abandoned
ASHFORD 75/679181 04/09/1999 United States Abandoned
A & Design TMA593358 10/28/2003 Canada Registered
ASHFORD 1089864 01/22/2001 Canada Pending
TMA521249 11/26/2002 Canada Registered
ASHFORD 577302 09/25/2000 Chile
Registration/ Registration/
Application Application
Xxxx Number Date Country Status
---- ------------- ------------- ------- ------
A & Design 1699548 01/14/2002 China Registered
ASHFORD 1960714 09/14/2002 China Registered
ASHFORD 2001047 08/07/2002 China Registered
ASHFORD 1699549 01/14/2002 China Registered
ASHFORD 1968391 08/28/2002 China Registered
A & Design 1565019 03/20/2000 European Union Pending
ASHFORD 1238286 04/27/2001 European Union Pending
ASHFORD 1565225 03/15/2002 European Union Pending
ASHFORD 4530560 12/21/2001 Japan Registered
A & Design 4500630 082/24/2001 Japan Registered
A & Design 682083 12/20/2000 Mexico Registered
ASHFORD 697707 04/30/2001 Mexico Registered
ASHFORD 679109 11/29/2000 Mexico Registered
ASHFORD 697708 04/30/2001 Mexico Registered
ASHFORD 697709 04/30/2001 Mexico Registered
A & Design 22769 09/08/2000 Peru Registered
ASHFORD 22387 08/11/2000 Peru Registered
A & Design 67929 05/09/2001 South Korea Registered
ASHFORD 67928 05/09/2001 South Korea Registered
A & Design 475809 09/04/2000 Switzerland Registered
ASHFORD 475695 08/30/2000 Switzerland Registered
A & Design Bor11977 03/02/2001 Thailand Registered
ASHFORD Bor11795 02/15/2001 Thailand Registered
