Exhibit 4.3
INTELLECTUAL PROPERTY SECURITY AGREEMENT
INTELLECTUAL PROPERTY SECURITY AGREEMENT (this "Agreement" dated as of
February 25, 2005, by and between, CGM Applied Security Technologies, Inc., a
Delaware corporation (the "Company"), and CGM Security Solutions, Inc., a
Florida corporation (the "Secured Party").
W I T N E S S E T H :
WHEREAS, pursuant to a Asset Purchase Agreement, dated the date hereof
(the "Asset Purchase Agreement"), among the Company, Digital Descriptor Systems,
Inc. and the Secured Party, Company has agreed to execute and deliver to the
Secured Party and the Secured Party has agreed to accept, as partial payment for
the "Assets" defined in the Asset Purchase Agreement, a 2.86% Secured
Convertible Promissory Note (the "Note); and
WHEREAS, the Secured Party agrees and acknowledges that its rights under
this Agreement are subordinate to the rights of AJW Partners, LLC, AJW Offshore,
Ltd., AJW Qualified Partners, LLC and New Millennium Capital Partners II, LLC
(together, the "Original Secured Parties"), pursuant to an Intellectual Property
Security Agreement between Digital Descriptor Systems, Inc. (the "Parent") and
the Original Secured Parties, dated November 30, 2004 (the "NIR IP Security
Agreement");
Whereas, the Parent and the Original Secured Parties have entered into a
letter agreement dated as of January 31, 2005, (the "NIR Letter") which amends
certain provisions of the NIR Security Agreement and the agreements related
thereto, all of which are incorporated in this Agreement as if set forth in
their entirety herein; and
WHEREAS, in order to induce the Secured Party to execute and deliver the
Asset Purchase Agreement and accept the Note as partial payment thereunder,
Company has agreed to execute and deliver to the Secured Party this Agreement
for the benefit of the Secured Party and to grant to it a security interest
secondary to the interests of the Original Secured Parties in certain
Intellectual Property (defined below) of Company to secure the prompt payment,
performance and discharge in full of all of Company's obligations under the
Note.
NOW, THEREFORE, in consideration of the agreements herein contained and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms which
are defined in the Purchase Agreement and used herein are so used as so defined;
and the following terms shall have the following meanings:
"Software Intellectual Property" shall mean:
(a) all software programs (including all source code, object
code and all related applications and data files), whether now owned, upgraded,
enhanced, licensed or leased or hereafter acquired by the Company, above;
(b) all computers and electronic data processing hardware
and firmware associated therewith;
(c) all documentation (including flow charts, logic
diagrams, manuals, guides and specifications) with respect to such software,
hardware and firmware described in the preceding clauses (a) and (b); and
(d) all rights with respect to all of the foregoing,
including, without limitation, any and all upgrades, modifications, copyrights,
licenses, options, warranties, service contracts, program services, test rights,
maintenance rights, support rights, improvement rights, renewal rights and
indemnifications and substitutions, replacements, additions, or model
conversions of any of the foregoing.
"Copyrights" shall mean (a) all copyrights, registrations and
applications for registration, issued or filed, including any reissues,
extensions or renewals thereof, by or with the United States Copyright Office or
any similar office or agency of the United States, any state thereof, or any
other country or political subdivision thereof, or otherwise, including, all
rights in and to the material constituting the subject matter thereof,
including, without limitation, any referred to in Schedule B hereto, and (b) any
rights in any material which is copyrightable or which is protected by common
law, United States copyright laws or similar laws or any law of any State,
including, without limitation, any thereof referred to in Schedule B hereto.
"Copyright License" shall mean any agreement, written or oral,
providing for a grant by the Company of any right in any Copyright, including,
without limitation, any thereof referred to in Schedule B hereto.
"Intellectual Property" shall means, collectively, the
Software Intellectual Property, Copyrights, Copyright Licenses, Patents, Patent
Licenses, Trademarks, Trademark Licenses and Trade Secrets.
"Obligations" means all of the Company's obligations under
this Agreement, the Asset Purchase Agreement and the Note, in each case, whether
now or hereafter existing, voluntary or involuntary, direct or indirect,
absolute or contingent, liquidated or unliquidated, whether or not jointly owed
with others, and whether or not from time to time decreased or extinguished and
later decreased, created or incurred, and all or any portion of such obligations
or liabilities that are paid, to the extent all or any part of such payment is
avoided or recovered directly or indirectly from the Secured Party as a
preference, fraudulent transfer or otherwise as such obligations may be amended,
supplemented, converted, extended or modified from time to time.
"Patents" shall mean (a) all letters patent of the United
States or any other country or any political subdivision thereof, and all
reissues and extensions thereof, including, without limitation, any thereof
referred to in Schedule B hereto, and (b) all applications for letters patent of
the United States and all divisions, continuations and continuations-in-part
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thereof or any other country or any political subdivision, including, without
limitation, any thereof referred to in Schedule B hereto.
"Patent License" shall mean all agreements, whether written or
oral, providing for the grant by the Company of any right to manufacture, use or
sell any invention covered by a Patent, including, without limitation, any
thereof referred to in Schedule B hereto.
"Security Agreement" shall mean the a Security Agreement,
dated the date hereof between Company and the Secured Party.
"Trademarks" shall mean (a) all trademarks, trade names,
corporate names, company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business identifiers, and the
goodwill associated therewith, now existing or hereafter adopted or acquired,
all registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any state thereof or any other
country or any political subdivision thereof, or otherwise, including, without
limitation, any thereof referred to in Schedule B hereto, and (b) all reissues,
extensions or renewals thereof.
"Trademark License" shall mean any agreement, written or oral,
providing for the grant by the Company of any right to use any Trademark,
including, without limitation, any thereof referred to in Schedule B hereto.
"Trade Secrets" shall mean common law and statutory trade
secrets and all other confidential or proprietary or useful information and all
know-how obtained by or used in or contemplated at any time for use in the
business of the Company (all of the foregoing being collectively called a "Trade
Secret"), whether or not such Trade Secret has been reduced to a writing or
other tangible form, including all documents and things embodying, incorporating
or referring in any way to such Trade Secret, all Trade Secret licenses,
including each Trade Secret license referred to in Schedule B hereto, and
including the right to xxx for and to enjoin and to collect damages for the
actual or threatened misappropriation of any Trade Secret and for the breach or
enforcement of any such Trade Secret license.
2. Grant of Security Interest. In accordance with Section 3(m) of
the Security Agreement, to secure the complete and timely payment, performance
and discharge in full, as the case may be, of all of the Obligations, the
Company hereby, unconditionally and irrevocably, pledges, grants and
hypothecates to the Secured Party, a continuing security interest in, a
continuing lien upon secondary to the interests of the Original Secured Parties
an unqualified right to possession and disposition of and a right of set-off
against, in each case to the fullest extent permitted by law, all of the
Company's right, title and interest of whatsoever kind and nature in and to the
Intellectual Property (the "Security Interest").
3. Representations and Warranties. The Company hereby represents
and warrants, and covenants and agrees with, the Secured Party as follows:
(a) The Company has the requisite corporate power and
authority to enter into this Agreement and otherwise to carry out its
obligations thereunder. The execution, delivery and performance by the Company
of this Agreement and the filings contemplated
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therein have been duly authorized by all necessary action on the part of the
Company and no further action is required by the Company. This Agreement
constitutes a legal, valid and binding obligation of the Company enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditor's rights generally.
(b) The Company represents and warrants that it has no place
of business or offices where its respective books of account and records are
kept (other than temporarily at the offices of its attorneys or accountants) or
places where the Intellectual Property is stored or located, except as set forth
on Schedule A attached hereto;
(c) The Company is the sole owner of the Intellectual
Property (except for non-exclusive licenses granted by the Company in the
ordinary course of business), free and clear of any liens, security interests,
encumbrances, rights or claims, and is fully authorized to grant the Security
Interest in and to pledge the Intellectual Property. There is not on file in any
governmental or regulatory authority, agency or recording office an effective
financing statement, security agreement, license or transfer or any notice of
any of the foregoing (other than those that have been filed in favor of the
Secured Party pursuant to this Agreement) covering or affecting any of the
Intellectual Property. So long as this Agreement shall be in effect, the Company
shall not execute and shall not knowingly permit to be on file in any such
office or agency any such financing statement or other document or instrument
(except to the extent filed or recorded in favor of the Secured Party pursuant
to the terms of this Agreement), except for a financing statement covering
assets acquired by the Company after the date hereof, provided that the value of
the Intellectual Property covered by this Agreement along with the Collateral
(as defined in the Security Agreement) is equal to at least 150% of the
Obligations.
(d) The Company shall at all times maintain its books of
account and records relating to the Intellectual Property at its principal place
of business and its Intellectual Property at the locations set forth on Schedule
A attached hereto and may not relocate such books of account and records unless
it delivers to the Secured Party at least 30 days prior to such relocation (i)
written notice of such relocation and the new location thereof (which must be
within the United States) and (ii) evidence that the necessary documents have
been filed and recorded and other steps have been taken to perfect the Security
Interest to create in favor of the Secured Party valid, perfected and continuing
first priority liens in the Intellectual Property to the extent they can be
perfected through such filings.
(e) This Agreement creates in favor of the Secured Party a
valid security interest in the Intellectual Property securing the payment and
performance of the Obligations and, upon making the filings required hereunder,
a perfected first priority security interest in such Intellectual Property to
the extent that it can be perfected through such filings.
(f) Upon request of the Secured Party, the Company shall
execute and deliver any and all agreements, instruments, documents, and papers
as the Secured Party may request to evidence the Secured Party's security
interest in the Intellectual Property and the goodwill and general intangibles
of the Company relating thereto or represented thereby, and the Company hereby
appoints the Secured Party its attorney-in-fact to execute and file all such
writings for the foregoing purposes, all acts of such attorney being hereby
ratified and
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confirmed; such power being coupled with an interest is irrevocable until the
Obligations have been fully satisfied and are paid in full.
(g) The execution, delivery and performance of this
Agreement does not conflict with or cause a breach or default, or an event that
with or without the passage of time or notice, shall constitute a breach or
default, under any agreement to which the Company is a party or by which the
Company is bound. No consent (including, without limitation, from stock holders
or creditors of the Company) is required for the Company to enter into and
perform its obligations hereunder.
(h) The Company shall at all times maintain the liens and
Security Interest provided for hereunder as valid and perfected first priority
liens and security interests in the Intellectual Property to the extent they can
be perfected by filing in favor of the Secured Party until this Agreement and
the Security Interest hereunder shall terminate pursuant to Section 11. The
Company hereby agrees to defend the same against any and all persons. The
Company shall safeguard and protect all Intellectual Property for the account of
the Secured Party. Without limiting the generality of the foregoing, the Company
shall pay all fees, taxes and other amounts necessary to maintain the
Intellectual Property and the Security Interest hereunder, and the Company shall
obtain and furnish to the Secured Party from time to time, upon demand, such
releases and/or subordinations of claims and liens which may be required to
maintain the priority of the Security Interest hereunder.
(i) The Company will not transfer, pledge, hypothecate,
encumber, license (except for non-exclusive licenses granted by the Company in
the ordinary course of business), sell or otherwise dispose of any of the
Intellectual Property without the prior written consent of the Secured Party.
(j) The Company shall, within ten (10) days of obtaining
knowledge thereof, advise the Secured Party promptly, in sufficient detail, of
any substantial change in the Intellectual Property, and of the occurrence of
any event which would have a material adverse effect on the value of the
Intellectual Property or on the Secured Party's security interest therein.
(k) The Company shall permit the Secured Party and its
representatives and agents to inspect the Intellectual Property at any time, and
to make copies of records pertaining to the Intellectual Property as may be
requested by the Secured Party from time to time.
(l) The Company will take all steps reasonably necessary to
diligently pursue and seek to preserve, enforce and collect any rights, claims,
causes of action and accounts receivable in respect of the Intellectual
Property.
(m) The Company shall promptly notify the Secured Party in
sufficient detail upon becoming aware of any attachment, garnishment, execution
or other legal process levied against any Intellectual Property and of any other
information received by the Company that may materially affect the value of the
Intellectual Property, the Security Interest or the rights and remedies of the
Secured Party hereunder.
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(n) All information heretofore, herein or hereafter supplied
to the Secured Party by or on behalf of the Company with respect to the
Intellectual Property is accurate and complete in all material respects as of
the date furnished. (o) Schedule A attached hereto contains a list of all of the
subsidiaries of Company.
(p) Schedule B attached hereto includes all Licenses, and
all Patents and Patent Licenses, if any, owned by the Company in its own name as
of the date hereof. Schedule B hereto also includes all Trademarks and Trademark
Licenses, if any, owned by the Company in its own name as of the date hereof.
Schedule B hereto includes all Copyrights and Copyright Licenses, if any, owned
by the Company in its own name as of the date hereof. To the best of the
Company's knowledge, each License, Patent, Trademark and Copyright is valid,
subsisting, unexpired, enforceable and has not been abandoned. Except as set
forth in Schedule B, none of such Licenses, Patents, Trademarks and Copyrights
is the subject of any licensing or franchise agreement. To the best of the
Company's knowledge, no holding, decision or judgment has been rendered by any
Governmental Body which would limit, cancel or question the validity of any
License, Patent, Trademark or Copyright. No action or proceeding is pending (i)
seeking to limit, cancel or question the validity of any License, Patent,
Trademark or Copyright, or (ii) which, if adversely determined, would have a
material adverse effect on the value of any License, Patent, Trademark or
Copyright. The Company has used and will continue to use for the duration of
this Agreement, proper statutory notice in connection with its use of the
Patents, Trademarks and Copyrights and consistent standards of quality in
products leased or sold under the Patents, Trademarks and Copyrights.
(q) With respect to any Intellectual Property:
(i) such Intellectual Property is subsisting and has
not been adjudged invalid or unenforceable, in
whole or in part;
(ii) such Intellectual Property is valid and
enforceable;
(iii) the Company has made all necessary filings and
recordations to protect its interest in such
Intellectual Property, including, without
limitation, recordations of all of its interests
in the Patents, Patent Licenses, Trademarks and
Trademark Licenses in the United States Patent and
Trademark Office and in corresponding offices
throughout the world and its claims to the
Copyrights and Copyright Licenses in the United
States Copyright Office and in corresponding
offices throughout the world;
(iv) other than as set forth in Schedule B, the Company
is the exclusive owner of the entire and
unencumbered right, title and interest in and to
such Intellectual Property and no claim has been
made that the use of such Intellectual
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Property infringes on the asserted rights of any
third party; and
(v) the Company has performed and will continue to
perform all acts and has paid all required fees
and taxes to maintain each and every item of
Intellectual Property in full force and effect
throughout the world, as applicable.
(r) Except with respect to any Trademark or Copyright that
the Company shall reasonably determine is of negligible economic value to the
Company, the Company shall
(i) maintain each Trademark and Copyright in full
force free from any claim of abandonment for
non-use, maintain as in the past the quality of
products and services offered under such Trademark
or Copyright; employ such Trademark or Copyright
with the appropriate notice of registration; not
adopt or use any xxxx which is confusingly similar
or a colorable imitation of such Trademark or
Copyright unless the Secured Party shall obtain a
perfected security interest in such xxxx pursuant
to this Agreement; and not (and not permit any
licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any Trademark
or Copyright may become invalidated;
(ii) not, except with respect to any Patent that it
shall reasonably determine is of negligible
economic value to it, do any act, or omit to do
any act, whereby any Patent may become abandoned
or dedicated; and
(iii) notify the Secured Party immediately if it knows,
or has reason to know, that any application or
registration relating to any Patent, Trademark or
Copyright may become abandoned or dedicated, or of
any adverse determination or development
(including, without limitation, the institution
of, or any such determination or development in,
any proceeding in the United States Patent and
Trademark Office, United States Copyright Office
or any court or tribunal in any country) regarding
its ownership of any Patent, Trademark or
Copyright or its right to register the same or to
keep and maintain the same.
(s) Whenever the Company, either by itself or through any
agent, employee, licensee or designee, shall file an application for the
registration of any Patent, Trademark or Copyright with the United States Patent
and Trademark Office, United States Copyright Office or any similar office or
agency in any other country or any political subdivision thereof or acquire
rights to any new Patent, Trademark or Copyright whether or not registered,
report such filing to the Secured Party within five business days after the last
day of the fiscal quarter in which such filing occurs.
(t) The Company shall take all reasonable and necessary
steps, including, without limitation, in any proceeding before the United States
Patent and Trademark Office, United States Copyright Office or any similar
office or agency in any other country or any political subdivision thereof, to
maintain and pursue each application (and to obtain the
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relevant registration) and to maintain each registration of the Patents,
Trademarks and Copyrights, including, without limitation, filing of applications
for renewal, affidavits of use and affidavits of incontestability.
(u) In the event that any Patent, Trademark or Copyright
included in the Intellectual Property is infringed, misappropriated or diluted
by a third party, promptly notify the Secured Party after it learns thereof and
shall, unless it shall reasonably determine that such Patent, Trademark or
Copyright is of negligible economic value to it, which determination it shall
promptly report to the Secured Party, promptly xxx for infringement,
misappropriation or dilution, to seek injunctive relief where appropriate and to
recover any and all damages for such infringement, misappropriation or dilution,
or take such other actions as it shall reasonably deem appropriate under the
circumstances to protect such Patent, Trademark or Copyright. If the Company
lacks the financial resources to comply with this Section 3(t), the Company
shall so notify the Secured Party and shall cooperate fully with any enforcement
action undertaken by the Secured Party on behalf of the Company.
4. Defaults. The following events shall be "Events of Default":
(a) The occurrence of an Event of Default (as defined in the
Note) under the Note or under the Asset Purchase Agreement;
(b) Any representation or warranty of the Company in this
Agreement or in the Security Agreement shall prove to have been incorrect in any
material respect when made;
(c) The failure by the Company to observe or perform any of
its obligations hereunder or in the Security Agreement or under the Asset
Purchase Agreement for twenty (20) days after receipt by the Company of notice
of such failure from the Secured Party; or
(d) Any failure to perform their obligations or any breach
of their promises set forth in the NIR Letter by any of the Original Secured
Parties identified therein.
5. Duty To Hold In Trust. Upon the occurrence of any Event of
Default and at any time thereafter, the Company shall, upon receipt by it of any
revenue, income or other sums subject to the Security Interest, whether payable
pursuant to the Note or otherwise, or of any check, draft, note, trade
acceptance or other instrument evidencing an obligation to pay any such sum,
hold the same in trust for the Secured Party and shall forthwith endorse and
transfer any such sums or instruments, or both, to the Secured Party for
application to the satisfaction of the Obligations.
6. Rights and Remedies Upon Default. Upon occurrence of any Event
of Default and at any time thereafter, the Secured Party shall have the right to
exercise all of the remedies conferred hereunder and under the Note, and the
Secured Party shall have all the rights and remedies of a secured party under
the UCC and/or any other applicable law (including the
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Uniform Commercial Code of any jurisdiction in which any Intellectual Property
is then located). Without limitation, the Secured Party shall have the following
rights and powers:
(a) The Secured Party shall have the right to take
possession of the Intellectual Property and, for that purpose, enter, with the
aid and assistance of any person, any premises where the Intellectual Property,
or any part thereof, is or may be placed and remove the same, and the Company
shall assemble the Intellectual Property and make it available to the Secured
Party at places which the Secured Party shall reasonably select, whether at the
Company's premises or elsewhere, and make available to the Secured Party,
without rent, all of the Company's respective premises and facilities for the
purpose of the Secured Party taking possession of, removing or putting the
Intellectual Property in saleable or disposable form.
(b) The Secured Party shall have the right to operate the
business of the Company using the Intellectual Property and shall have the right
to assign, sell, lease or otherwise dispose of and deliver all or any part of
the Intellectual Property, at public or private sale or otherwise, either with
or without special conditions or stipulations, for cash or on credit or for
future delivery, in such parcel or parcels and at such time or times and at such
place or places, and upon such terms and conditions as the Secured Party may
deem commercially reasonable, all without (except as shall be required by
applicable statute and cannot be waived) advertisement or demand upon or notice
to the Company or right of redemption of the Company, which are hereby expressly
waived. Upon each such sale, lease, assignment or other transfer of Intellectual
Property, the Secured Party may, unless prohibited by applicable law which
cannot be waived, purchase all or any part of the Intellectual Property being
sold, free from and discharged of all trusts, claims, right of redemption and
equities of the Company, which are hereby waived and released.
7. Applications of Proceeds. The proceeds of any such sale, lease
or other disposition of the Intellectual Property hereunder shall be applied
first, to the expenses of retaking, holding, storing, processing and preparing
for sale, selling, and the like (including, without limitation, any taxes, fees
and other costs incurred in connection therewith) of the Intellectual Property,
to the reasonable attorneys' fees and expenses incurred by the Secured Party in
enforcing its rights hereunder and in connection with collecting, storing and
disposing of the Intellectual Property, and then to satisfaction of the
Obligations, and to the payment of any other amounts required by applicable law,
after which the Secured Party shall pay to the Company any surplus proceeds. If,
upon the sale, license or other disposition of the Intellectual Property, the
proceeds thereof are insufficient to pay all amounts to which the Secured Party
is legally entitled, the Company will be liable for the deficiency, together
with interest thereon, at the rate of 8% per annum (the "Default Rate"), and the
reasonable fees of any attorneys employed by the Secured Party to collect such
deficiency. To the extent permitted by applicable law, the Company waives all
claims, damages and demands against the Secured Party arising out of the
repossession, removal, retention or sale of the Intellectual Property, unless
due to the gross negligence or willful misconduct of the Secured Party.
8. Costs and Expenses. The Company agrees to pay all
out-of-pocket fees, costs and expenses incurred in connection with any filing
required hereunder, including without limitation, any financing statements,
continuation statements, partial releases and/or termination statements related
thereto or any expenses of any searches reasonably required by the Secured
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Party. The Company shall also pay all other claims and charges which in the
reasonable opinion of the Secured Party would prejudice, imperil or otherwise
materially affect the Intellectual Property or the Security Interest therein.
The Company will also, upon demand, pay to the Secured Party the amount of any
and all reasonable expenses, including the reasonable fees and expenses of its
counsel and of any experts and agents, which the Secured Party may incur in
connection with (i) the enforcement of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Intellectual Property, or (iii) the exercise or enforcement of any of the
rights of the Secured Party under the Note. Until so paid, any fees payable
hereunder shall be added to the principal amount of the Note and shall bear
interest at the Default Rate.
9. Responsibility for Intellectual Property. The Company assumes
all liabilities and responsibility in connection with all Intellectual Property,
and the obligations of the Company hereunder or under the Note shall in no way
be affected or diminished by reason of the loss, destruction, damage or theft of
any of the Intellectual Property or its unavailability for any reason.
10. Security Interest Absolute. All rights of the Secured Party and
all Obligations of the Company hereunder, shall be absolute and unconditional,
irrespective of: (a) any lack of validity or enforceability of this Agreement,
the Note or any agreement entered into in connection with the foregoing, or any
portion hereof or thereof; (b) any change in the time, manner or place of
payment or performance of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any departure
from the Note or any other agreement entered into in connection with the
foregoing; (c) any exchange, release or nonperfection of any of the Intellectual
Property, or any release or amendment or waiver of or consent to departure from
any other Intellectual Property for, or any guaranty, or any other security, for
all or any of the Obligations; (d) any action by the Secured Party to obtain,
adjust, settle and cancel in its sole discretion any insurance claims or matters
made or arising in connection with the Intellectual Property; or (e) any other
circumstance which might otherwise constitute any legal or equitable defense
available to the Company, or a discharge of all or any part of the Security
Interest granted hereby. Until the Obligations shall have been paid and
performed in full, the rights of the Secured Party shall continue even if the
Obligations are barred for any reason, including, without limitation, the
running of the statute of limitations or bankruptcy. The Company expressly
waives presentment, protest, notice of protest, demand, notice of nonpayment and
demand for performance. In the event that at any time any transfer of any
Intellectual Property or any payment received by the Secured Party hereunder
shall be deemed by final order of a court of competent jurisdiction to have been
a voidable preference or fraudulent conveyance under the bankruptcy or
insolvency laws of the United States, or shall be deemed to be otherwise due to
any party other than the Secured Party, then, in any such event, the Company's
obligations hereunder shall survive cancellation of this Agreement, and shall
not be discharged or satisfied by any prior payment thereof and/or cancellation
of this Agreement, but shall remain a valid and binding obligation enforceable
in accordance with the terms and provisions hereof. The Company waives all right
to require the Secured Party to proceed against any other person or to apply any
Intellectual Property which the Secured Party may hold at any time, or to
marshal assets, or to pursue any other remedy. The Company waives any defense
arising by reason of the application of the statute of limitations to any
obligation secured hereby.
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11. Term of Agreement. This Agreement and the Security Interest
shall terminate on the date on which all payments under the Note have been made
in full and all other Obligations have been paid or discharged. Upon such
termination, the Secured Party, at the request and at the expense of the
Company, will join in executing any termination statement with respect to any
financing statement executed and filed pursuant to this Agreement.
12. Power of Attorney; Further Assurances.
(a) The Company authorizes the Secured Party, and does
hereby make, constitute and appoint it, and its respective officers, agents,
successors or assigns with full power of substitution, as the Company's true and
lawful attorney-in-fact, with power, in its own name or in the name of the
Company, to, after the occurrence and during the continuance of an Event of
Default, (i) endorse any notes, checks, drafts, money orders, or other
instruments of payment (including payments payable under or in respect of any
policy of insurance) in respect of the Intellectual Property that may come into
possession of the Secured Party; (ii) to sign and endorse any UCC financing
statement or any invoice, freight or express xxxx, xxxx of lading, storage or
warehouse receipts, drafts against debtors, assignments, verifications and
notices in connection with accounts, and other documents relating to the
Intellectual Property; (iii) to pay or discharge taxes, liens, security
interests or other encumbrances at any time levied or placed on or threatened
against the Intellectual Property; (iv) to demand, collect, receipt for,
compromise, settle and xxx for monies due in respect of the Intellectual
Property; and (v) generally, to do, at the option of the Secured Party, and at
the Company's expense, at any time, or from time to time, all acts and things
which the Secured Party deems necessary to protect, preserve and realize upon
the Intellectual Property and the Security Interest granted therein in order to
effect the intent of this Agreement and the Note, all as fully and effectually
as the Company might or could do; and the Company hereby ratifies all that said
attorney shall lawfully do or cause to be done by virtue hereof. This power of
attorney is coupled with an interest and shall be irrevocable for the term of
this Agreement and thereafter as long as any of the Obligations shall be
outstanding.
(b) On a continuing basis, the Company will make, execute,
acknowledge, deliver, file and record, as the case may be, in the proper filing
and recording places in any jurisdiction, including, without limitation, the
jurisdictions indicated on Schedule C, attached hereto, all such instruments,
and take all such action as may reasonably be deemed necessary or advisable, or
as reasonably requested by the Secured Party, to perfect the Security Interest
granted hereunder and otherwise to carry out the intent and purposes of this
Agreement, or for assuring and confirming to the Secured Party the grant or
perfection of a security interest in all the Intellectual Property.
(c) The Company hereby irrevocably appoints the Secured Party
as the Company's attorney-in-fact, with full authority in the place and stead of
the Company and in the name of the Company, from time to time in the Secured
Party's discretion, to take any action and to execute any instrument which the
Secured Party may deem necessary or advisable to accomplish the purposes of this
Agreement, including the filing, in its sole discretion, of one or more
financing or continuation statements and amendments thereto, relative to any of
the Intellectual Property without the signature of the Company where permitted
by law.
11
13. Notices. All notices, requests, demands and other
communications hereunder shall be in writing, with copies to all the other
parties hereto, and shall be deemed to have been duly given when (i) if
delivered by hand, upon receipt, (ii) if sent by facsimile, upon receipt of
proof of sending thereof, (iii) if sent by nationally recognized overnight
delivery service (receipt requested), the next business day or (iv) if mailed by
first-class registered or certified mail, return receipt requested, postage
prepaid, four days after posting in the U.S. mails, in each case if delivered to
the following addresses:
If to the Company: CGM Applied Security Technologies, Inc.
0000 Xxxxxxx 00, Xxxxx 000
Xxx Xxxx, Xxx Xxxxxx 00000
Attention: President and Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copy to: Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Secured Party: Xx. Xxxx Xxxxxx
00000 Xxxxx Xxxx Xxxx.
Xxxxx Xxxxx, Xxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
With a copy to: Xxxxxx X. Xxxxxxx, Esq.
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
14. Other Security. To the extent that the Obligations are now or
hereafter secured by property other than the Intellectual Property or by the
guarantee, endorsement or property of any other person, firm, corporation or
other entity, then the Secured Party shall have the right, in its sole
discretion, to pursue, relinquish, subordinate, modify or take any other action
with respect thereto, without in any way modifying or affecting any of the
Secured Party's rights and remedies hereunder.
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15. Miscellaneous.
(a) No course of dealing between the Company and the Secured
Party, nor any failure to exercise, nor any delay in exercising, on the part of
the Secured Party, any right, power or privilege hereunder or under the Note
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder or thereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
(b) All of the rights and remedies of the Secured Party with
respect to the Intellectual Property, whether established hereby or by the Note
or by any other agreements, instruments or documents or by law shall be
cumulative and may be exercised singly or concurrently.
(c) This Agreement and the Security Agreement constitute the
entire agreement of the parties with respect to the subject matter hereof and is
intended to supersede all prior negotiations, understandings and agreements with
respect thereto. Except as specifically set forth in this Agreement, no
provision of this Agreement may be modified or amended except by a written
agreement specifically referring to this Agreement and signed by the parties
hereto.
(d) In the event that any provision of this Agreement is
held to be invalid, prohibited or unenforceable in any jurisdiction for any
reason, unless such provision is narrowed by judicial construction, this
Agreement shall, as to such jurisdiction, be construed as if such invalid,
prohibited or unenforceable provision had been more narrowly drawn so as not to
be invalid, prohibited or unenforceable. If, notwithstanding the foregoing, any
provision of this Agreement is held to be invalid, prohibited or unenforceable
in any jurisdiction, such provision, as to such jurisdiction, shall be
ineffective to the extent of such invalidity, prohibition or unenforceability
without invalidating the remaining portion of such provision or the other
provisions of this Agreement and without affecting the validity or
enforceability of such provision or the other provisions of this Agreement in
any other jurisdiction.
(e) No waiver of any breach or default or any right under
this Agreement shall be considered valid unless in writing and signed by the
party giving such waiver, and no such waiver shall be deemed a waiver of any
subsequent breach or default or right, whether of the same or similar nature or
otherwise.
(f) This Agreement shall be binding upon and inure to the
benefit of each party hereto and its successors and assigns.
(g) Each party shall take such further action and execute
and deliver such further documents as may be necessary or appropriate in order
to carry out the provisions and purposes of this Agreement.
(h) This Agreement shall be construed in accordance with the
laws of the State of New Jersey, except to the extent the validity, perfection
or enforcement of a security interest hereunder in respect of any particular
Intellectual Property which are governed by a jurisdiction other than the State
of New Jersey in which case such law shall govern. Each of the parties hereto
irrevocably submit to the exclusive jurisdiction of New Jersey Superior Court,
Somerset County, over any action or proceeding arising out of or relating to
this Agreement, and
13
the parties hereto hereby irrevocably agree that all claims in respect of such
action or proceeding may be heard and determined in such New Jersey. The parties
hereto agree that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. The parties hereto further waive any
objection to venue in the State of New Jersey and any objection to an action or
proceeding in the State of New Jersey on the basis of forum non conveniens.
(i) EACH PARTY HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING
OF ANY DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR
EACH PARTY TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH PARTY HAS ALREADY
RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH PARTY WILL
CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY
FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT SUCH PARTY HAS KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHTS TO
A JURY TRIAL FOLLOWING SUCH CONSULTATION. THIS WAIVER IS IRREVOCABLE, MEANING
THAT, NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS AND SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE
EVENT OF A LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
(j) This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and, all of which taken together shall constitute one and the same Agreement. In
the event that any signature is delivered by facsimile transmission, such
signature shall create a valid binding obligation of the party executing (or on
whose behalf such signature is executed) the same with the same force and effect
as if such facsimile signature were the original thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
CGM APPLIED SECURITY TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
CGM SECURITY SOLUTIONS, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Xxxx Xxxxxx, President
