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EXHIBIT 10.30
INTELLECTUAL PROPERTY SECURITY AGREEMENT
INTELLECTUAL PROPERTY SECURITY AGREEMENT (this "AGREEMENT" dated
as of
March 15, 2007, by and among Ingen Technologies, Inc., a Georgia
corporation
(the "COMPANY"), and the secured parties signatory hereto and
their respective
endorsees, transferees and assigns (collectively, the "SECURED
PARTY").
W I T N E S S E T H:
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 6% Callable
Secured
Convertible Notes, due three years from the date of issue (the
"NOTES"), which
are convertible into shares of Company's Common Stock, no par
value 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:
42. 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.
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"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 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.
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"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.
43. 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").
44. 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 B. 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 or a
security agreement
prior to the date hereof) covering or affecting any of the
Intellectual
Property, except as set forth on SCHEDULE B. 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 or a security
agreement prior to
the date hereof), except for a financing statement covering
assets acquired by
the Company after the date hereof or as set forth on SCHEDULE B,
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.
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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 B, 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.
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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. 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:
1. such Intellectual Property is subsisting and has not
been adjudged invalid o
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