optimizerx_s1-ex1005.htm


    EXHIBIT
10.5

     

    SECURITY AGREEMENT

     

    THIS
SECURITY AGREEMENT (this “Security Agreement”)
is made as of September 5, 2008 by and between OptimizeRx Corporation, a Nevada
corporation (“Debtor”), and Vicis
Capital Master Fund (“Vicis”), a sub-trust
of Vicis Capital Series Master Trust, a unit trust organized and existing under
the laws of the Cayman Islands.

     

    
      R E C I T A L
S

    

     

    WHEREAS,
pursuant to a Securities Purchase Agreement of even date herewith by and between
Vicis and Debtor (as amended or modified from time to time, the “Purchase Agreement”),
Vicis has made an investment (the “Investment”) in
shares of Debtor's Series A Preferred Convertible Stock (the “Preferred
Shares”).

     

    WHEREAS,
it is a condition precedent to Vicis making the Investment that Debtor execute
and deliver to Vicis a security agreement in the form hereof.

     

    WHEREAS,
this Agreement is the Security Agreement referred to in the Purchase
Agreement.

     

    NOW,
THEREFORE, in consideration of the Recitals and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Debtor hereby agrees with Vicis as follows:

     

    ARTICLE
I

    DEFINITIONS

     

    Capitalized
terms not defined herein shall have the meaning given to them in the Purchase
Agreement.  Capitalized terms not otherwise defined herein and defined
in the UCC shall have, unless the context otherwise requires, the meanings set
forth in the UCC as in effect on the date hereof (except that the term “document” shall only
have the meaning set forth in the UCC for purposes of clause (d) of the
definition of Collateral), the recitals and as follows:

     

    1.1    Accounts.  “Accounts”
shall mean all accounts, including without limitation all rights to payment for
goods sold or services rendered that are not evidenced by instruments or chattel
paper, whether or not earned by performance, and any associated rights
thereto.

     

    1.2    Collateral.  “Collateral”
shall mean all personal properties and assets of Debtor, wherever located,
whether tangible or intangible, and whether now owned or hereafter acquired or
arising, including without limitation:

     

    (a)    all
Inventory and documents relating to Inventory;

     

    (b)    all
Accounts and documents relating to Accounts;

     

    (c)    all
equipment, fixtures and other goods, including without limitation machinery,
furniture, vehicles and trade fixtures;

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (d)    all
general intangibles (including without limitation payment intangibles, software,
customer lists, sales records and other business records, contract rights,
causes of action, and licenses, permits, franchises, patents, copyrights,
trademarks, and goodwill of the business in which the trademark is used, trade
names, or rights to any of the foregoing), promissory notes, contract rights,
chattel paper, documents, letter-of-credit rights and instruments;

     

    (e)    all motor
vehicles;

     

    (f)    (i) all
deposit accounts and (ii) all cash and cash equivalents deposited with or
delivered to Vicis from time to time and pledged as additional security for the
Obligations;

     

    (g)    all
investment property;

     

    (h)    all
commercial tort claims; and

     

    (i)    all
additions and accessions to, all spare and repair parts, special tools,
equipment and replacements for, and all supporting obligations, proceeds and
products of, any and all of the foregoing assets described in Sections (a)
through (h), inclusive, above.

     

    1.3    Event of
Default.  “Event of Default” shall have the meaning specified
in the Purchase Agreement.

     

    1.4    Inventory.  “Inventory”
shall mean all inventory, including without limitation all goods held for sale,
lease or demonstration or to be furnished under contracts of service, goods
leased to others, trade-ins and repossessions, raw materials, work in process
and materials used or consumed in Debtor’s business, including, without
limitation, goods in transit, wheresoever located, whether now owned or
hereafter acquired by Debtor, and shall include such property the sale or other
disposition of which has given rise to Accounts and which has been returned to
or repossessed or stopped in transit by Debtor.

     

    1.5    Obligations.  “Obligations”
shall mean (a) Debtor's obligation to pay dividends on, and redeem at the
Maturity Date, the Preferred Shares as required by the terms thereof; (b) all
obligations of the Debtor associated with any renewal, extension, refinancing,
or amendment to the terms of the Preferred Shares; and (c) all other debts,
liabilities, obligations, covenants and agreements of Debtor contained in the
Transaction Documents.

     

    1.6    Person.  “Person”
shall mean and include an individual, partnership, corporation, trust,
unincorporated association and any unit, department or agency of
government.

     

    1.7    Security
Agreement.  “Security Agreement” shall mean this Security
Agreement, together with the schedules attached hereto, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms hereof.

     

    1.8    Security
Interest.  “Security Interest” shall mean the security interest
of Vicis in the Collateral granted by Debtor pursuant to this Security
Agreement.

        

    
      
        
        

      

      
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    1.9    UCC.  “UCC”
shall mean the Uniform Commercial Code as adopted in the State of Nevada and in
effect from time to time.

     

    ARTICLE
II

    THE
SECURITY INTEREST; REPRESENTATIONS AND WARRANTIES

     

    2.1    The Security
Interest.  To secure the full and complete payment and
performance when due (whether at maturity, by acceleration, or otherwise) of
each of the Obligations, Debtor hereby grants to Vicis a security interest in
all of Debtor’s right, title and interest in and to the Collateral.

     

    2.2    Representations and
Warranties.  Debtor hereby represents and warrants to Vicis
that:

     

    (a)    The
records of Debtor with respect to the Collateral are presently located only at
the address(es) listed on Schedule 1 attached
to this Security Agreement.

     

    (b)    The
Collateral is presently located only at the location(s) listed on Schedule 1
attached to this Security Agreement.

     

    (c)    The chief
executive office and chief place(s) of business of Debtor are presently located
at the address(es) listed on Schedule 1 to this
Security Agreement.

     

    (d)    Debtor is
a Nevada corporation and its exact legal name is set forth in the definition of
“Debtor” in the introductory paragraph of this Security
Agreement.  The organization identification number of Debtor is listed
on Schedule 1
to this Security Agreement.

     

    (e)    All of
Debtor’s present patents and trademarks, if any, including those which have been
registered with, or for which an application for registration has been filed in,
the United States Patent and Trademark Office are listed on Schedule 2 attached
to this Security Agreement.  All of Debtor’s present copyrights
registered with, or for which an application for registration has been filed in,
the United States Copyright Office or any similar office or agency of any state
or any other country are listed on Schedule 2 attached
to this Security Agreement.

     

    (f)    Debtor
has good title to, or valid leasehold interest in, all of the Collateral and
there are no Liens on any of the Collateral except Permitted Liens.

     

    2.3    Authorization to File
Financing Statements.  Debtor hereby irrevocably authorizes
Vicis at any time and from time to time to file in any UCC jurisdiction any
initial financing statements and amendments thereto that (a) indicate the
Collateral (i) as all assets of Debtor or words of similar effect, regardless of
whether any particular asset comprised in the Collateral falls within the scope
of Article 9 of the UCC or such other jurisdiction, or (ii) as being of an equal
or lesser scope or with greater detail, and (b) contain any other information
required by Part 5 of Article 9 of the UCC for the sufficiency of filing office
acceptance of any financing statement or amendment, including whether Debtor is
an organization, the type of organization and any state or federal organization
identification number issued to Debtor.  Debtor agrees to furnish any
such information to Vicis promptly upon request.  Debtor also ratifies
its authorization for Vicis to have filed in any UCC jurisdiction any like
initial financing statements or amendments thereto if filed prior to the date
hereof.

     

    
      
        
        

      

      
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    ARTICLE
III

    AGREEMENTS
OF DEBTOR

     

    From and
after the date of this Security Agreement, and until all of the Obligations are
paid in full, Debtor shall:

     

    3.1    Sale of
Collateral.  Not sell, lease, transfer or otherwise dispose of
Collateral or any interest therein, except as provided for in the Purchase
Agreement and for sales of Inventory in the ordinary course of
business.

     

    3.2    Maintenance of Security
Interest.  

     

    (a)    At the
expense of Debtor, defend the Security Interest against any and all claims of
any Person adverse to Vicis and take such action and execute such financing
statements and other documents as Vicis may from time to time request to
maintain the perfected status of the Security Interest.  Debtor shall
not further encumber or grant a security interest in any of the Collateral
except as provided for in the Purchase Agreement.

     

    (b)    Take any
other action requested by Vicis to ensure the attachment, perfection and first
priority of, and the ability of Vicis to enforce its security interest in any
and all of the Collateral including, without limitation, (i) executing,
delivering and, where appropriate, filing financing statements and amendments
relating thereto under the UCC, to the extent, if any, that Debtor’s signature
thereon is required therefor, (ii) complying with any provision of any statute,
regulation or treaty of the United States as to any Collateral if compliance
with such provision is a condition to attachment, perfection or priority of, or
ability of Vicis to enforce, its security interest in such Collateral, (iii)
taking all actions required by any earlier versions of the UCC (to the extent
applicable) or by other law, as applicable in any relevant UCC jurisdiction, or
by other law as applicable in any foreign jurisdiction, and (iv) obtaining
waivers from landlords where any of the tangible Collateral is located in form
and substance satisfactory to Vicis.

     

    3.3    Locations.  Give
Vicis at least thirty (30) days prior written notice of Debtor’s intention to
relocate the tangible Collateral (other than Inventory in transit) or any of the
records relating to the Collateral from the locations listed on Schedule 1 attached
to this Security Agreement, in which event Schedule 1 shall be
deemed amended to include the new location.  Any additional filings or
refilings requested by Vicis as a result of any such relocation in order to
maintain the Security Interest in the Collateral shall be at Debtor’s
expense.

     

    3.4    Insurance.  Keep
the Collateral consisting of tangible personal property insured against loss or
damage to the Collateral under a policy or policies covering such risks as are
ordinarily insured against by similar businesses, but in any event including
fire, lightning, windstorm, hail, explosion, riot, riot attending a strike,
civil commotion, damage from aircraft, smoke and uniform standard extended
coverage and vandalism and malicious mischief endorsements, limited only as may
be provided in the standard form of such endorsements at the time in use in the
applicable state.  Such insurance shall be for amounts not less than
the actual replacement cost of the Collateral.  No policy of insurance
shall be

     

    
      
        
        

      

      
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    so
written that the proceeds thereof will produce less than the minimum coverage
required by the preceding sentence, by reason of co-insurance provisions or
otherwise, without the prior consent thereto in writing by
Vicis.  Debtor will obtain lender’s loss payable endorsements on
applicable insurance policies in favor of Vicis and will provide certificates of
such insurance to Vicis.  Debtor shall cause each insurer to agree, by
endorsement on the policy or policies or certificates of insurance issued by it
or by independent instrument furnished to Vicis, that such insurer will give
thirty (30) days written notice to Vicis before such policy will be altered or
canceled.  No settlement of any insurance claim shall be made without
Vicis’s prior consent.  In the event of any insured loss, Debtor shall
promptly notify Vicis thereof in writing, and Debtor hereby authorizes and
directs any insurer concerned to make payment of such loss directly to Vicis as
its interest may appear.  Vicis is authorized, in the name and on
behalf of Debtor, to make proof of loss and to adjust, compromise and collect,
in such manner and amounts as it shall determine, all claims under all policies;
and Debtor agrees to sign, on demand of Vicis, all receipts, vouchers, releases
and other instruments which may be necessary or desirable in aid of this
authorization.  The proceeds of any insurance from loss, theft, or
damage to the Collateral shall be held in a segregated account established by
Vicis and disbursed and applied at the discretion of Vicis, either in reduction
of the Obligations or applied toward the repair, restoration or replacement of
the Collateral.

     

    3.5    Name; Legal
Status.  (a) Without providing at least 30 days prior written
notice to Vicis, Debtor will not change its name, its place of business or, if
more than one, chief executive office, or its mailing address or organizational
identification number if it has one, (b) if Debtor does not have an
organizational identification number and later obtains one, Debtor shall
forthwith notify Vicis of such organizational identification number, and (c)
Debtor will not change its type of organization or jurisdiction of
organization.

     

    ARTICLE
IV

    RIGHTS
AND REMEDIES

     

    4.1    Right to
Cure.  In case of failure by Debtor to procure or maintain
insurance, or to pay any fees, assessments, charges or taxes arising with
respect to the Collateral, Vicis shall have the right, but shall not be
obligated, to effect such insurance or pay such fees, assessments, charges or
taxes, as the case may be, and, in that event, the cost thereof shall be payable
by Debtor to Vicis immediately upon demand, together with interest at an annual
rate equal 10% from the date of disbursement by Vicis to the date of payment by
Debtor.

     

    4.2    Rights of
Parties.  Upon the occurrence and during the continuance of an
Event of Default, in addition to all the rights and remedies provided in the
Transaction Documents or in Article 9 of the UCC and any other applicable
law, Vicis may (but is under no obligation so to do):

     

    (a)    require
Debtor to assemble the Collateral at a place designated by Vicis, which is
reasonably convenient to the parties; and

     

    (b)    take
physical possession of Inventory and other tangible Collateral and of Debtor’s
records pertaining to all Collateral that are necessary to properly administer
and control the Collateral or the handling and collection of Collateral, and
sell, lease or otherwise dispose of the Collateral in whole or in part, at
public or private sale, on or off the premises of Debtor; and

     

    
      
        
        

      

      
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    (c)    collect
any and all money due or to become due and enforce in Debtor’s name all rights
with respect to the Collateral; and

     

    (d)    settle,
adjust or compromise any dispute with respect to any Account; and

     

    (e)    receive
and open mail addressed to Debtor; and

     

    (f)    on behalf
of Debtor, endorse checks, notes, drafts, money orders, instruments or other
evidences of payment.

     

    4.3    Power of
Attorney.  Upon the occurrence and during the continuance of an
Event of Default, Debtor does hereby constitute and appoint Vicis as Debtor’s
true and lawful attorney with full power of substitution for Debtor in Debtor’s
name, place and stead for the purposes of performing any obligation of Debtor
under this Security Agreement and taking any action and executing any instrument
which Vicis may deem necessary or advisable to perform any obligation of Debtor
under this Security Agreement, which appointment is irrevocable and coupled with
an interest, and shall not terminate until the Obligations are paid in
full.

     

    4.4    Right to Collect
Accounts.  Upon the occurrence and during the continuance of an
Event of Default and without limiting Debtor’s obligations under the Transaction
Documents:  (a) Debtor authorizes Vicis to notify any and all debtors
on the Accounts to make payment directly to Vicis (or to such place as Vicis may
direct); (b) Debtor agrees, on written notice from Vicis, to deliver to Vicis
promptly upon receipt thereof, in the form in which received (together with all
necessary endorsements), all payments received by Debtor on account of any
Account; (c) Vicis may, at its option, apply all such payments against the
Obligations or remit all or part of such payments to Debtor; and (d) Vicis may
take any actions in accordance with Section 4.7 of this
Agreement.

     

    4.5    Reasonable
Notice.  Written notice, when required by law, sent in
accordance with the provisions of Section 10.6 of the
Purchase Agreement and given at least ten (10) business days (counting the day
of sending) before the date of a proposed disposition of the Collateral shall be
reasonable notice.

     

    4.6    Limitation on Duties
Regarding Collateral.  The sole duty of Vicis with respect to
the custody, safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the UCC or otherwise, shall be to deal with
it in the same manner as Vicis deals with similar property for its own
account.  Neither Vicis nor any of its directors, officers, employees
or agents, shall be liable for failure to demand, collect or realize upon any of
the Collateral or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Collateral upon the request of Debtor or
otherwise.

     

    
      
        
        

      

      
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    4.7    Lock Box; Collateral
Account.  This Section 4.7 shall be
effective only upon the occurrence and during the continuance of an Event of
Default.  If Vicis so requests in writing, Debtor will direct each of
its debtors on the Accounts to make payments due under the relevant Account or
chattel paper directly to a special lock box to be under the control of
Vicis.  Debtor hereby authorizes and directs Vicis to deposit into a
special collateral account to be established and maintained by Vicis all checks,
drafts and cash payments received in said lock box.  All deposits in
said collateral account shall constitute proceeds of Collateral and shall not
constitute payment of any Obligation until so applied.  At its option,
Vicis may, at any time, apply finally collected funds on deposit in said
collateral account to the payment of the Obligations, in the order of
application selected in the sole discretion of Vicis, or permit Debtor to
withdraw all or any part of the balance on deposit in said collateral
account.  If a collateral account is so established, Debtor agrees
that it will promptly deliver to Vicis, for deposit into said collateral
account, all payments on Accounts and chattel paper received by
it.  All such payments shall be delivered to Vicis in the form
received (except for Debtor’s endorsement where necessary).  Until so
deposited, all payments on Accounts and chattel paper received by Debtor shall
be held in trust by Debtor for and as the property of Vicis and shall not be
commingled with any funds or property of Debtor.

     

    4.8    Application of
Proceeds.  Vicis shall apply the proceeds resulting from any
sale or disposition of the Collateral in the following order:

     

    (a)    to the
costs of any sale or other disposition;

     

    (b)    to the
expenses incurred by Vicis in connection with any sale or other disposition,
including attorneys’ fees;

     

    (c)    to the
payment of the Obligations then due and owing in any order selected by Vicis;
and

     

    (d)    to
Debtor.

     

    4.9    Other
Remedies.  No remedy herein conferred upon Vicis is intended to
be exclusive of any other remedy and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Security Agreement and the Transaction Documents now or hereafter existing at
law or in equity or by statute or otherwise.  No failure or delay on
the part of Vicis in exercising any right or remedy hereunder shall operate as a
waiver thereof nor shall any single or partial exercise of any right hereunder
preclude other or further exercise thereof or the exercise of any other right or
remedy.

     

    ARTICLE
V

    MISCELLANEOUS

     

    5.1    Expenses and Attorneys’
Fees.  Debtor shall pay all fees and expenses incurred by
Vicis, including the fees of counsel including in-house counsel, in connection
with the preparation, administration and amendment of this Security Agreement
and the protection, administration and enforcement of the rights of Vicis under
this Security Agreement or with respect to the Collateral, including without
limitation the protection and enforcement of such rights in any
bankruptcy.

     

    5.2    Setoff.  Debtor
agrees that Vicis shall have all rights of setoff and bankers’ lien provided by
applicable law.

     

    
      
        
        

      

      
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    5.3    Assignability;
Successors.  Debtor’s rights and liabilities under this
Security Agreement are not assignable or delegable, in whole or in part, without
the prior written consent of Vicis.  The provisions of this Security
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the parties.

     

    5.4    Survival.  All
agreements, representations and warranties made in this Security Agreement or in
any document delivered pursuant to this Security Agreement shall survive the
execution and delivery of this Security Agreement, and the delivery of any such
document.

     

    5.5    Governing
Law.  This Security Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Florida
applicable to contracts made and wholly performed within such
state.

     

    5.6    Counterparts;
Headings.  This Security Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same agreement.  The article
and section headings in this Security Agreement are inserted for convenience of
reference only and shall not constitute a part hereof.

     

    5.7    Notices.  All
communications or notices required or permitted by this Security Agreement shall
be given to Debtor in accordance with Section 12.6 of the
Purchase Agreement.

     

    5.8    Amendment; No Waiver;
Cumulative Remedies.  No amendment of this Security Agreement
shall be effective unless in writing and signed by Debtor and
Vicis.  Vicis shall not by any act (except by a written instrument
signed by Vicis), delay, indulgence, omission or otherwise be deemed to have
waived any right or remedy hereunder or to have acquiesced in any Event of
Default or in any breach of any of the terms and conditions
hereof.  No failure to exercise, nor any delay in exercising, on the
part of Vicis, any right, power or privilege hereunder shall operate as a waiver
thereof.  No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.  A waiver by Vicis of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which Vicis would otherwise have on any future
occasion.  The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.

     

    5.9    Severability.  Any
provision of this Security Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of this Security Agreement in such jurisdiction or affecting the
validity or enforceability of any provision in any other
jurisdiction.

     

    5.10   WAIVER OF RIGHT TO JURY
TRIAL.  VICIS AND DEBTOR ACKNOWLEDGE AND AGREE THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS SECURITY AGREEMENT WOULD BE BASED UPON
DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE PARTIES AGREE THAT ANY LAWSUIT
ARISING OUT OF ANY SUCH CONTROVERSY SHALL BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.

     

    
      
        
        

      

      
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    5.11   Submission to
Jurisdiction.  As a material inducement to Vicis to make the
Investment:

     

    (a)    DEBTOR
AGREES THAT ALL ACTIONS OR PROCEEDINGS IN ANY MANNER RELATING TO OR ARISING OUT
OF THIS SECURITY AGREEMENT MAY BE BROUGHT ONLY IN COURTS OF THE STATE OF FLORIDA
OR THE FEDERAL COURTS LOCATED IN FLORIDA AND DEBTOR CONSENTS TO THE JURISDICTION
OF SUCH COURTS.  DEBTOR WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH COURT AND ANY RIGHT IT MAY HAVE NOW OR HEREAFTER
HAVE TO CLAIM THAT ANY SUCH ACTION OR PROCEEDING IS IN AN INCONVENIENT COURT;
AND

     

    (b)    Debtor
consents to the service of process in any such action or proceeding by certified
mail sent to Debtor at the address specified in Section 12.6 of the
Purchase Agreement.

     

    


     

    [SIGNATURE
PAGE TO FOLLOW]

     

    
      
        
        

      

      
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    IN
WITNESS WHEREOF, this Security Agreement has been executed as of the day and
year first above written.

     

     

    
      	 	

              OPTIMIZERX
      CORPORATION

               

              By:______________________________

              Name: David
      Harrell

              Title: Chief
      Executive Officer

               

              


              VICIS
      CAPITAL MASTER FUND

              By:
      Vicis Capital LLC

               

              By:______________________________

              Name:
      Chris Phillips

              Title:
      Managing Director

            


    

     

     

     

     

    Signature Page to Security
Agreement

     

    
      
        
        

      

      
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    SCHEDULE 1 TO SECURITY
AGREEMENT

     

    Locations
of Collateral

     

    Organizational
ID:

    


    


    


    Address
of Debtor’s records of Collateral and chief executive office:

     

    407 Sixth Street, Rochester,
MI 48307

    


    Collateral
Locations:

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    SCHEDULE 2 TO SECURITY
AGREEMENT

     

    Intellectual
Property

    
 

    Patents

    


    


    Trademarks

    


    


    Copyrights