Execution
Version
PATENT
SECURITY AGREEMENT
(Patents,
Patent Applications and Patent Licenses)
This
Patent Security Agreement (the “ Patent Security
Agreement ”), dated as of February 12, 2009, is by
and between (i) Neah Power Systems, Inc. , a Nevada
corporation (the “ Debtor ”), and (ii)
Agile Opportunity Fund, LLC , a Delaware limited liability
company (“ Agile ”), and Capitoline
Advisors Inc. , a New York corporation (“
Capitoline ”; together with Agile, the “
Secured Parties ”, each a “ Secured
Party ”).
Background
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The
Secured Parties have purchased from the Debtor Original Issue
Discount Term Secured Convertible Promissory Notes (the “
Notes ”) in the aggregate face amount of
$262,500.00 pursuant to a Securities Purchase Agreement between the
Debtor and the Secured Parties dated as of the date hereof (the
“ Securities Purchase Agreement ”), and,
subject to the terms of the Securities Purchase Agreement, may
purchase additional Notes in the aggregate face amount of
$787,500.00 at the Subsequent Closing. Capitalized terms
used herein and not otherwise defined herein shall have the
meanings specified in the Securities Purchase Agreement.
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To
induce the Secured Parties to purchase the Notes and pursuant to
(i) a Security Agreement dated of even date herewith (as amended or
supplemented from time to time in accordance with the terms
thereof, the “ Security Agreement ”)
between the Debtor and the Secured Parties (the Secured Parties in
the capacity of secured parties under the Security Agreement,
together with their successors in such capacity, are referred to as
the “ Grantees ”) and (ii) certain other
collateral documents (including this Patent Security Agreement),
the Debtor has granted for the benefit of such Grantees a
continuing security interest in personal property of the Debtor,
including all right, title and interest of the Debtor in, to and
under the Patent Collateral (as defined below), to secure the
Debtor’s secured obligations under the Security
Agreement.
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N O W,
T H E R E F O R E,
For
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Debtor grants to the Grantees,
to secure the Debtor’s secured obligations under the Security
Agreement, a continuing security interest in all of the
Debtor’s right, title and interest in, to and under the
following (all of the following items or types of property being
herein collectively referred to as the “ Patent
Collateral ”), whether now owned or existing or
hereafter acquired or arising:
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each
patent owned and patent application (including all reissues,
divisions, continuations, continuation-in-part, extensions and
reexaminations thereof) registered or applied for in the United
States and all other nations throughout the world by the Debtor,
including, without limitation, each patent and patent application
referred to in Schedule I hereto (each, a “
Patent ”);
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each
patent license to which the Debt
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