Filed by Bowne Pure Compliance



 




Exhibit 10.37




INTELLECTUAL PROPERTY SECURITY AGREEMENT




THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT (the “Agreement”), dated as of August
31, 2007, is made by each of DIGITAL ANGEL CORPORATION, a Delaware corporation (“DOC”),
DIGITAL ANGEL TECHNOLOGY CORPORATION, a Minnesota corporation (“DATC”) and FEARING
MANUFACTURING CO., INC. (“FMC” and together with DOC and DATC, the “Grantors” and each, a
“Grantor”), in favor of KALLINA CORPORATION (“Lender”).



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



WHEREAS, Lender is willing to enter into the Security Agreement, but only upon the condition,
among others, that each 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, each 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published or unpublished, all registrations and recordings thereof, and all applications in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.



“Obligations” Loans, all advances, debts, liabilities, obligations, covenants and
duties owing by each Company and each of its Eligible Subsidiaries to Lender (or any corporation
that directly or indirectly controls or is controlled by or is under common control with Lender),
other than those arising under the Registration Rights Agreement or the Warrant, of every kind and
description (whether or not evidenced by any note or other instrument and whether or not for the
payment of money or the performance or non-performance of any act), direct or indirect,



 


 









 






absolute or contingent, due or to become due, contractual or tortious, liquidated or
unliquidated, whether existing by operation of law or otherwise now existing or hereafter arising
including any debt, liability or obligation owing from any Company and/or each of its Eligible
Subsidiaries to others which Lender may have obtained by assignment or otherwise and further
including all interest (including interest accruing at the then applicable rate provided in the
Security Agreement after the maturity of the Loans and interest accruing at the then applicable
rate provided in the Security Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, whether or not a claim for
post-filing or post-petition interest is allowed or allowable in such proceeding), charges or any
other payments each Company and each of its Eligible Subsidiaries is required to make by law or
otherwise arising under or as a result of the Security Agreement, the Ancillary Agreements (other
than the Registration Rights Agreement or the Warrant) or otherwise, together with all reasonable
expenses and reasonable attorneys’ fees chargeable to the Companies’ or any of their Eligible
Subsidiaries’ accounts or incurred by Lender in connection therewith.



“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 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 such Grantor now or hereafter existing
from time to time, each Grantor hereby grants to Lender a continuing first priority security
interest in all of such Grantor’s right, title and interest in, to and under the following, whether
presently existing or hereafter created or acquired (collectively, the “Collateral”):


 


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(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 of the Patents, Trademarks and Copyrights identified in Schedule
I, Schedule II and Schedule III, respectively, that are material
to its business or operations, as referred to on Schedule IV hereto, said
Schedule IV, together with updated Schedules I, II and III, to be provided
to Lender within 45 days of the execution of this Agreement;




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




(f) 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




(g) all products and proceeds of the foregoing, including, without limitation,
any claim by such 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.



Section 3. REPRESENTATIONS AND WARRANTIES. Each 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. 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, including
clearing up any gaps or inaccuracies in the chain of title in the Patents, Trademarks and
Copyrights identified in Schedules I, II and III, respectively, at the sole cost of Grantor, which
action shall take place within 45 days of the execution of this Agreement.


 


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




(a) Grantor shall notify Lender immediately if it knows or has reason to know
that any application or registration relating to any Patent, Trademark or Copyright
(now or hereafter existing) that is material to the conduct of its business or
operations 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 similar foreign office or agency or any court)
regarding Grantor’s ownership of any Patent, Trademark or Copyright that is material
to the conduct of its business or operations, its right to register the same, or to
keep and maintain the same.




(b) In the event Grantor, either directly or through any agent, employee,
licensee or designee, files an application for the registration of any Patent,
Trademark or Copyright with the United States Patent and Trademark Office or the
United States Copyright Office or any similar office or agency after the effective
date of this Agreement, Grantor shall provide Lender 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 commercially reasonable 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) which applications and registrations are material to the
conduct of its business or operations, including, but not limited to, the filing of
applications for renewal, affidavits of use, affidavits of noncontestability and
opposition and interference and cancellation proceedings. Grantor shall also, upon
Lender’s request, execute any necessary documents to evidence Lender’s lien on
Grantor’s Patents, Trademarks and Copyrights.




(d) In the event that any of the Intellectual Property that is material to the
conduct of its business or operations is infringed upon, or misappropriated or
diluted by a third party, Grantor shall notify Lender promptly after Grantor learns
thereof. Grantor shall take all commercially reasonable actions to protect such
Intellectual Property and to seek any and all damages for such infringement,
misappropriation or dilution..



Section 5. SECURITY AGREEMENT. The security interests granted pursuant to this
Agreement are granted in conjunction with the security interests granted to Lender by each Grantor
pursuant to the Security Agreement. Each 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 Security Agreement, the terms and provisions of which are
incorporated by reference herein as if fully set forth herein.


 


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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 any Grantor for liquidation or
reorganization, should any 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 such 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) Each Grantor assumes all responsibility and liability
arising from the use of the Patents, Trademarks and/or Copyrights and each Grantor hereby
indemnifies and holds Lender harmless from and against any claim, suit, loss, damage or expense
(including reasonable attorneys’ fees) arising out of such 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, such 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 any 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 such Grantor, and all such obligations of any Grantor shall be and remain
enforceable against and only against such 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 Security Agreement.



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 Security 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.


 


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[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.



	 	 	 	 	 
	 	DIGITAL ANGEL CORPORATION 

 	 
	 	By:  	/s/ Lorraine M. Breece
 	 
	 	 	Name:  	Lorraine M. Breece                                                               	 
	 	 	Title:  	Vice President, Acting Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	DIGITAL ANGEL TECHNOLOGY CORPORATION 

 	 
	 	By:  	/s/ Lorraine M. Breece
 	 
	 	 	Name:  	Lorraine M. Breece                                                               	 
	 	 	Title:  	Vice President, Acting Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	FEARING MANUFACTURING CO., INC. 

 	 
	 	By:  	/s/ Lorraine M. Breece
 	 
	 	 	Name:  	Lorraine M. Breece                                                               	 
	 	 	Title:  	Vice President, Acting Chief Financial Officer 	 
	 




ACCEPTED and ACKNOWLEDGED by:



KALLINA CORPORATION

By: Laurus Capital Management, LLC, as
investment manager



By: /s/ David Grin 

Name: David Grin

Title: Principal