Exhibit 10.7
INTELLECTUAL PROPERTY SECURITY
AGREEMENT
This INTELLECTUAL
PROPERTY SECURITY AGREEMENT (as the same may from time to time be
amended, restated or otherwise modified, this
“Agreement”) is made as of the 29
th
day of May, 2009 by
MEDIABISTRO.COM, INC., a Delaware corporation
(“Borrower”), in favor of ALAN M. MECKLER, a New York
resident, (“Lender”).
1. Recitals .
Lender has made a loan (the
“Loan”) to the Borrower and WebMediaBrands Inc. as
evidenced by a Promissory Note of even date herewith (the
“Note”) from Borrower and WebMediaBrands Inc. to Lender
in the original principal amount of Seven Million One Hundred
Ninety Seven Thousand One Hundred Forty Three and 21/100 Dollars
($7,197,143.21). .
Borrower deems it to be in its
direct pecuniary and business interests that Borrower obtain the
Loan from the Lender.
Borrower understands that the Lender
is willing to make the Loan to Borrower only upon certain terms and
conditions, one of which is that Borrower grant to Lender a
security interest in the Collateral, as hereinafter defined, and
this Agreement is being executed and delivered in consideration of
the Loan and for other valuable consideration.
2. Definitions . Except as
specifically defined herein, (a) capitalized terms used herein
that are defined in the Note shall have their respective meanings
ascribed to them in the Security Agreement, and (b) unless
otherwise defined in the Security Agreement, terms that are defined
in the U.C.C. are used herein as so defined. As used in this
Agreement, the following terms shall have the following
meanings:
“Assignment” means an
Assignment in the form of Exhibit A attached
hereto.
“Collateral” means,
collectively, all of Borrower’s existing and future right,
title and interest in, to and under (a) industrial designs,
patents, patent registrations, patent applications, trademarks,
trademark registrations, trademark applications, service marks,
trade names, and copyright registrations and other intellectual
property or registrations, whether federal, state or foreign,
including, but not limited to, those that are registered or pending
as listed on Schedule 1 hereto (as such Schedule 1
may from time to time be amended, supplemented or otherwise
modified); (b) common law trademark rights, copyrights,
improvements, confidential information and inventions;
(c) renewals, continuations, extensions, reissues and
divisions of any of the foregoing; (d) rights to sue for past,
present and future infringements or any other commercial tort
claims relating to any of the foregoing; (e) all licenses and
all income, revenue and royalties with respect to any licenses,
whether registered or unregistered and all other payments earned
under contract rights relating to any of the foregoing;
(f) all general intangibles and all intangible intellectual or
similar property of Borrower connected with and symbolized by any
of the foregoing; (g) goodwill associated with any of the
foregoing; (h) all payments under
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insurance, including the returned premium upon
any cancellation of insurance (whether or not Lender is the loss
payee thereof) or any indemnity, warranty or guaranty payable by
reason of loss or damage to or otherwise with respect to any of the
foregoing; and (i) Proceeds of any of the
foregoing.
“Event of Default” means
an event or condition that constitutes an Event of Default, as
defined in Section 8.1 hereof.
“ITU Application” shall
mean a trademark application filed with the USPTO pursuant to 15
U.S.C. § 1051(b).
“Obligations” means,
collectively, (a) all indebtedness and other obligations now
owing or hereafter incurred by Borrower under the Note, and other
Loan Documents, and includes the principal of and interest on the
Loan; (b) each renewal, extension, consolidation or
refinancing of the Note, in whole or in part; (c) the
Accommodation Fee and all fees and other amounts payable to Lender
pursuant to the Note or any other Loan Document; and (d) all
Related Expenses.
“Security Agreement”
means the Security Agreement of even date herewith from Borrower to
Lender and granting the Lender a security interest in the
Borrower’s existing or future personal property and other
assets described therein.
“Trademark Act” shall
mean the U.S. Trademark Act of 1946, as amended.
“USCO” means the United
States Copyright Office in Washington, D.C.
“USPTO” means the United
States Patent and Trademark Office in Washington D.C.
3. Grant of Assignment and
Security Interest . In consideration of and as security for the
full and complete payment of all of the Loan, Borrower hereby
agrees that Lender shall at all times have, and hereby grants to
Lender a security interest in all of the Collateral, including
(without limitation) all of Borrower’s future Collateral,
irrespective of any lack of knowledge by Lender of the creation or
acquisition thereof. Borrower, and Lender hereby acknowledge and
agree that, with respect to any ITU Application included within the
Collateral, to the extent such an ITU Application would, under the
Trademark Act, be deemed to be transferred in violation of 15
U.S.C. § 1060(a) as a result of the security interest granted
herein, or otherwise invalidated or made unenforceable as a result
of the execution or performance of this Agreement, no security
interest shall be deemed to have been granted in such ITU
Application (notwithstanding the provisions of this Agreement or
any other Loan Document) until such time as the circumstances that
would give rise to such violation, invalidation or unenforceability
no longer exist.
4. Representations and
Warranties . Borrower hereby represents and warrants to Lender
as follows:
4.1. Borrower owns all of the
Collateral and, whether the same are registered or unregistered, no
such Collateral has been adjudged invalid or
unenforceable.
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4.2. The Collateral is valid and
enforceable.
4.3. Except as disclosed on
Schedule A to this Agreement, Borrower has no knowledge of
any material claim that the use of any of the Collateral does or
may violate the rights of any Person.
4.4. Borrower is the sole and
exclusive owner of the entire and unencumbered right, title and
interest in and to the Collateral, free and clear of any liens,
charges and encumbrances, including, without limitation, pledges,
assignments, licenses, registered user agreements and covenants by
Borrower not to sue third Persons.
4.5. Borrower has full power,
authority and legal right to pledge the Collateral and enter into
this Agreement and perform its terms.
4.6. Borrower has used, and shall
continue to use, for the duration of this Agreement, proper
statutory notice in connection with its use of the Collateral,
except where the failure to do so will not have a material adverse
effect on the Borrower or its business, assets, liabilities or
operations.
5. Further Assignment
Prohibited . Borrower shall not enter into any agreement that
is inconsistent with Borrower’s obligations under this
Agreement and shall not otherwise sell or assign its interest in,
or grant any license or sublicense with respect to, any of the
Collateral, without Lender’s prior written consent, except in
the ordinary course of business. Absent such prior written consent,
any attempted sale or license is null and void.
6. Right to Inspect . Upon
reasonable notice to Borrower from Lender, Borrower hereby grants
to Lender, and its employees and agents, the right, during regular
business hours, to visit any location of Borrower or, if
applicable, any other location, and to inspect the products and
quality control records relating thereto at Borrower’s
expense.
7. Standard
Patent and Trademark Use . Borrower shall not knowingly use any
material Collateral in any manner that would materially jeopardize
the validity or legal status thereof. Borrower shall comply with
all patent marking requirements as specified in 35 U.S.C.
§287. Borrower shall use commercially reasonable efforts to
conform its usage of any trademarks to standard trademark usage,
including, but not limited to, using the trademark symbols ®,
™, and SM where appropriate.
8. Event of Default
.
8.1. Any of the following shall
constitute an Event of Default under this Agreement: (a) an
Event of Default, as defined in the Note, shall occur under the
Note; (b) any representation, warranty or statement made by
Borrower in or pursuant to this Agreement, any Related Writing, or
any Loan Document shall be false or erroneous in any material
respect; or (c) Borrower shall fail or omit to perform or
observe any agreement made by Borrower in or pursuant to this
Agreement or in any Loan Document, and such failure or omission to
perform or observe such agreement or other writing shall not have
been fully corrected within thirty (30)
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days after the earlier of (i) any financial
officer of Borrower becomes aware of the occurrence thereof, or
(ii) the giving of written notice thereof to Borrower by
Lender that the specified failure or omission is to be
remedied.
8.2. Borrower expressly acknowledges
that Lender shall record this Agreement with the USCO and the
USPTO, as appropriate. Contemporaneously herewith, Borrower shall
execute and deliver to Lender the Assignment, which Assignment
shall have no force and effect and shall be held by Lender in
escrow until the occurrence of an Event of Default; provided, that,
anything herein to the contrary notwithstanding, the security
interest granted herein shall be effective as of the date of this
Agreement. After the occurrence of an Event of Default, the
Assignment shall immediately take effect upon certification of such
fact by Lender in the form reflected on the face of the Assignment
and Lender may, in its sole discretion, record the Assignment with
the USCO and the USPTO, as appropriate, or in any appropriate
office in any foreign jurisdiction in which such patent, trademark,
copyright or other intellectual property interest is registered, or
under whose laws such property interest has been
granted.
8.3. If an Event of Default shall
occur and be continuing, Borrower irrevocably authorizes and
empowers ender to terminate Borrower’s use of the Collateral
and to exercise such rights and remedies as allowed by law. Without
limiting the generality of the foregoing, after any delivery or
taking of possession of the Collateral, or any portion thereof,
pursuant to this Agreement, then, with or without resort to
Borrower or any other third person, all of which Borrower hereby
waives, and upon such terms and in such manner as Lender may deem
advisable, Lender may, in its sole discretion, sell, assign,
transfer and deliver any of the Collateral, together with the
associated goodwill, or any interest that Borrower may have
therein, at any time, or from time to time. No prior notice need be
given to Borrower or to any other third person in the case of any
sale of Collateral that Lender determines to be declining speedily
in value or that is customarily sold in any recognized market, but
in any other case Lender shall give Borrower no fewer than ten days
prior notice of either the time and place of any public sale of the
Collateral or of the time after which any private sale or other
intended disposition thereof is to be made. Borrower waives
advertisement of any such sale and (except to t
