Filed by Bowne Pure Compliance



 




Exhibit
10.5




INTELLECTUAL PROPERTY SECURITY AGREEMENT




THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT (the “Agreement”), dated as of August
31, 2007, is made by APPLIED DIGITAL SOLUTIONS, INC., a Delaware corporation (“Grantor”),
in favor of KALLINA CORPORATION (“Lender”).



WHEREAS, pursuant to that certain Securities Purchase Agreement dated as of the date hereof by
and between Grantor and Lender (as from time to time amended, restated, supplemented or otherwise
modified, the “Purchase Agreement”), Lender has agreed to provide financial accommodations
to Grantor;



WHEREAS, Lender is willing to enter into the Purchase Agreement, but only upon the condition,
among others, that Grantor shall have executed and delivered to Lender this Agreement;



NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor hereby agrees as follows:




Section 1. DEFINED TERMS.




(a) When used herein the following terms shall have the following meanings:



“Copyrights” means all copyrights arising under the laws of the United States, any
other country or any political subdivision thereof, whether registered or unregistered and whether
published or unpublished, all registrations and recordings thereof, and all applications in
connection therewith, including all registrations, recordings and applications in the United States
Copyright Office, and the right to obtain all renewals of any of the foregoing.



“Copyright Licenses” means all written agreements naming any Grantor as licensor or
licensee granting any right under any Copyright, including the grant of rights to manufacture,
distribute, exploit and sell materials derived from any Copyright.



“General Intangibles” shall have the meaning provided thereto in Section 9-102 of the
UCC, as amended, restated or otherwise modified from time to time.



“Master Security Agreement” shall have the meaning provided thereto in Section 5
hereof.



“Obligations” shall have the meaning provided thereto in the Master Security
Agreement.



“Patents” means (a) all letters patent of the United States, any other country or any
political subdivision thereof, and all reissues and extensions of such letters patent, (b) all
applications for letters patent of the United States or any other county and all divisions,
continuations and continuations-in-part thereof, and (c) all rights to obtain any reissues or
extensions of the foregoing.


 


 









 





“Patent Licenses” means all agreements, whether written or oral, providing for the
grant by or to any Grantor of any right to manufacture, use or sell any invention covered in whole
or in part by a Patent.



“Trademarks” means (a) all trademarks, trade names, corporate names, business names,
fictitious business names, trade styles, services marks, logos and other source or business
identifiers, and all 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 political subdivision thereof, or otherwise, and
all common-law rights thereto, and (b) the right to obtain all renewals thereof.



“Trademark Licenses” means, collectively, each agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any Trademark.




“UCC” shall have the meaning provided thereto in the Master Security Agreement.



(b) All capitalized terms used but not otherwise defined herein have the meanings given to
them in the Security Agreement.



Section 2. GRANT OF SECURITY INTEREST IN INTELLECTUAL PROPERTY COLLATERAL. To secure
the complete and timely payment of all the Obligations of the Grantor now or hereafter existing
from time to time, Grantor hereby grants to Lender a continuing first priority security interest in
all of Grantor’s right, title and interest in, to and under the following, whether presently
existing or hereafter created or acquired (collectively, the “Collateral”):




(a) all of its Patents and Patent Licenses to which it is a party including
those referred to on Schedule I hereto;




(b) all of its Trademarks and Trademark Licenses to which it is a party
including those referred to on Schedule II hereto;




(c) all of its Copyrights and Copyright Licenses to which it is a party
including those referred to on Schedule III hereto;




(d) all reissues, continuations or extensions of the foregoing;




(e) all goodwill of the business connected with the use of, and symbolized by,
each Patent, each Patent License, each Trademark, each Trademark License, each
Copyright and each Copyright License; and




(f) all products and proceeds of the foregoing, including, without limitation,
any claim by Grantor against third parties for past, present or future (i)
infringement or dilution of any Patent or Patent licensed under any Patent License,
(ii) injury to the goodwill associated with any Patent or any Patent licensed under
any Patent License, (iii) infringement or dilution of any Trademark or Trademark
licensed under any Trademark License, (iv) injury to the goodwill
associated with any Trademark or any Trademark licensed under any Trademark
License, (v) infringement or dilution of any Copyright or Copyright licensed under
any Copyright License, and (vi) injury to the goodwill associated with any Copyright
or any Copyright licensed under any Copyright License.


 


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Section 3. REPRESENTATIONS AND WARRANTIES. Grantor represents and warrants that
Grantor does not have any interest in, or title to, any Patent, Trademark or Copyright except as
set forth in Schedule I, Schedule II and Schedule III, respectively,
hereto. Grantor’s Patents, Trademarks and Copyrights are valid and enforceable, are solely owned
by Grantor and there is no claim that the use of any of them violates the rights of any third
person. Subject to any previously perfected security agreements previously recorded at the U.S.
Patent and Trademark Office, this Agreement is effective to create a valid and continuing lien on
and perfected security interests in favor of Lender in all of Grantor’s Patents, Trademarks and
Copyrights and such perfected security interests are enforceable as such as against any and all
creditors of, and purchasers from, Grantor. Upon filing of this Intellectual Property Security
Agreement with the United States Patent and Trademark Office and the United States Copyright Office
and the filing of appropriate financing statements, all action necessary or desirable to protect
and perfect Lender’s Lien on each Grantor’s Patents, Trademarks and Copyrights shall have been duly
taken.



Section 4. COVENANTS. Grantor covenants and agrees with Lender that from and after
the date of this Agreement:




(a) Grantor shall notify Lender promptly if it knows or has reason to know that
any application or registration relating to any Patent, Trademark or Copyright (now
or hereafter existing) may become abandoned or dedicated, or of any adverse
determination or development (including the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or any court) regarding
Grantor’s ownership of any Patent, Trademark or Copyright, its right to register the
same, or to keep and maintain the same.




(b) In no event shall Grantor, either directly or through any agent, employee,
licensee or designee, file an application for the registration of any Patent,
Trademark or Copyright with the United States Patent and Trademark Office, the
United States Copyright Office or any similar office or agency without giving Lender
prior written notice thereof, and, upon request of Lender, Grantor shall execute and
deliver a supplement hereto (in form and substance satisfactory to Lender) to
evidence Lender’s lien on such Patent, Trademark or Copyright, and the General
Intangibles of Grantor relating thereto or represented thereby.




(c) Grantor shall take all actions necessary or requested by Lender to maintain
and pursue each application, to obtain the relevant registration and to maintain the
registration of each of the Patents or Trademarks (now or hereafter existing),
including the filing of applications for renewal, affidavits of use, affidavits of
noncontestability and opposition and interference and cancellation proceedings.


 


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(d) In the event that any of the Collateral is infringed upon, or
misappropriated or diluted by a third party, Grantor shall notify Lender promptly
after Grantor learns thereof. Grantor shall, unless it shall reasonably determine
that such Collateral is in no way material to the conduct of its business or
operations, promptly sue for infringement, misappropriation or dilution and to
recover any and all damages for such infringement, misappropriation or dilution, and
shall take such other actions as Lender shall deem appropriate under the
circumstances to protect such Collateral.



Section 5. MASTER SECURITY AGREEMENT. The security interests granted pursuant to this
Agreement are granted in conjunction with the security interests granted to Lender by Grantor
pursuant to the Master Security Agreement. Grantor hereby acknowledges and affirms that the rights
and remedies of Lender with respect to the security interest in the Collateral made and granted
hereby are more fully set forth in the Master Security Agreement, the terms and provisions of which
are incorporated by reference herein as if fully set forth herein.



Section 6. REINSTATEMENT. This Agreement shall remain in full force and effect and
continue to be effective should any petition be filed by or against Grantor for liquidation or
reorganization, should Grantor become insolvent or make an assignment for the benefit of any
creditor or creditors or should a receiver or trustee be appointed for all or any significant part
of Grantor’s assets, and shall continue to be effective or be reinstated, as the case may be, if at
any time payment and performance of the Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee of the Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or
otherwise, all as though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or
returned.



Section 7. INDEMNIFICATION. (A) Grantor assumes all responsibility and liability
arising from the use of the Patents, Trademarks and/or Copyrights and Grantor hereby indemnifies
and holds Lender harmless from and against any claim, suit, loss, damage or expense (including
reasonable attorneys’ fees) arising out of Grantor’s operations of its business from the use of the
Patents, Trademarks and/or Copyrights. (B) In any suit, proceeding or action brought by Lender
under any Patent License, Trademark License or Copyright License for any sum owing thereunder, or
to enforce any provisions of such license, Grantor will indemnify and keep Lender harmless from and
against all expense, loss or damage suffered by reason of any defense, set off, counterclaim,
recoupment or reduction or liability whatsoever of the obligee thereunder, arising out of a breach
of Grantor of any obligation thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to or in favor of such obligee or its successors from Grantor, and all
such obligations of Grantor shall be and remain enforceable against and only against Grantor and
shall not be enforceable against Lender.



Section 8. NOTICES. Whenever it is provided herein that any notice, demand, request,
consent, approval, declaration or other communication shall or may be given to or served upon any
of the parties by any other party, or whenever any of the parties desires to give and serve upon
any other party any communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication shall be in
writing and shall be given in the manner, and deemed received, as provided for in the Purchase
Agreement.


 


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Section 9. TERMINATION OF THIS AGREEMENT. Subject to Section 6 hereof, this
Agreement shall terminate upon payment in full in cash of all Obligations and irrevocable
termination of the Purchase Agreement.



Section 10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which shall constitute one instrument.
It is understood and agreed that if facsimile copies of this Agreement bearing facsimile
signatures are exchanged between the parties hereto, such copies shall in all respects have the
same weight, force and legal effect and shall be fully as valid, binding, and enforceable as if
such signed facsimile copies were original documents bearing original signature.



[Signature Page to Follow]



 


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IN WITNESS WHEREOF, Grantor has caused this Intellectual Property Security Agreement to be
executed and delivered by its duly authorized officer as of the date first set forth above.



	 	 	 	 	 
	 	APPLIED DIGITAL SOLUTIONS, INC.	 
	 	 	 
	 	By:  	/s/ Lorraine M. Breece	 
	 	 	Name:  	Lorraine M. Breece	 
	 	 	Title:  	SVP, ACFO	 
	 




ACCEPTED and ACKNOWLEDGED by:



KALLINA CORPORATION



	 	 	 	 	 
	By:
	 	/s/ David Grin	 	 
	 
	 	 	 	 
	 
	 	Name:  David Grin	 	 
	 
	 	Title:    Director