INTELLECTUAL PROPERTY
SECURITY AGREEMENT
INTELLECTUAL PROPERTY SECURITY AGREEMENT (this
“ Agreement ” dated as of February 12, 2007, by
and among Optigenex Inc., a Delaware corporation (the “
Company ”), and the secured parties signatory hereto
and their respective endorsees, transferees and assigns
(collectively, the “ Secured Party
”).
WITNESSETH:
WHEREAS, pursuant to a Securities Purchase
Agreement, dated the date hereof, between Company and the Secured
Party (the “ Purchase Agreement ”), Company has
agreed to issue to the Secured Party and the Secured Party has
agreed to purchase from Company certain of Company’s 8%
Callable Secured Convertible Notes, due three years from the date
of issue (the “ Notes ”), which are convertible
into shares of Company’s Common Stock, par value $.001 per
share (the “ Common Stock ”). In connection
therewith, Company shall issue the Secured Party certain Common
Stock purchase warrants (the “ Warrants ”);
and
WHEREAS, in order to induce the Secured Party to
purchase the Notes, 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 first priority security interest 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 Notes and exercise and
discharge in full of Company’s obligations under the
Warrants; and
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 and the Notes,
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 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 sue 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 first lien upon, 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 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, except as set forth on Schedule D
. 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, except as set forth on Schedule
D . 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 as set forth on Schedule D or 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 confirmed; such power being
coupled with an interest is irrevocable until the Obligations have
been fully satisfied and are paid in full.
(g) Except as set forth on Schedule D , 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, which consent will not
be unreasonably withheld.
(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.
(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 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. Schedule B hereto includes all Trade Secrets
and Trade Secret Licenses, if any, owned by the Company as of the
date hereof. To the best of the Company’s knowledge, each
License, Patent, Trademark, Copyright and Trade Secret is valid,
subsisting, unexpired, enforceable and has not been abandoned.
Except as set forth in Schedule B , none of such Licenses,
Patents, Trademarks, Copyrights and Trade Secrets 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, Copyright
and Trade Secrets . Except as set forth in Schedule B , no
action or proceeding is pending (i) seeking to limit, cancel or
question the validity of any License, Patent, Trademark, Copyright
or Trade Secret, or (ii) which, if adversely determined, would have
a material adverse effect on the value of any License, Patent,
Trademark, Copyright or Trade Secret. 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:
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(i)
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such
Intellectual Property is subsisting and has not been adjudged
invalid or unenforceable, in whole or in part;
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(ii)
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such
Intellectual Property is valid and enforceable;
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(iii)
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the Company has
made all necessary filings and recordations to p
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