Intellectual Property Security Agreement


    EXHIBIT
      10.27

     

     

    INTELLECTUAL
      PROPERTY SECURITY AGREEMENT

     

    INTELLECTUAL
      PROPERTY SECURITY AGREEMENT (this
      “Agreement”
      dated as
      of June 30,
      2005,
      by and
      among FemOne, Inc., a Nevada corporation (the “Company”),
      and
      the secured parties signatory hereto and their respective endorsees, transferees
      and assigns (collectively, the “Secured
      Party”).

     

    W
      I T
      N E S S E T H :

     

    WHEREAS,
      pursuant to a Securities Purchase Agreement, dated the date hereof, between
      Company and the Secured Party (the “Purchase
      Agreement”),
      Company has agreed to issue to the Secured Party and the Secured Party has
      agreed to purchase from Company certain of Company’s 8% Secured Convertible
      Notes, due three years from the date of issue (the “Notes”),
      which
      are convertible into shares of Company’s Common Stock, par value $.001 per share
      (the “Common
      Stock”).
      In
      connection therewith, Company shall issue the Secured Party certain Common
      Stock
      purchase warrants (the “Warrants”);
      and

     

    WHEREAS,
      in order to induce the Secured Party to purchase the Notes, Company has agreed
      to execute and deliver to the Secured Party this Agreement for the benefit
      of
      the Secured Party and to grant to it a first priority security interest in
      certain Intellectual Property (defined below) of Company to secure the prompt
      payment, performance and discharge in full of all of Company’s obligations under
      the Notes and exercise and discharge in full of Company’s obligations under the
      Warrants; and

     

    NOW,
      THEREFORE, in consideration of the agreements herein contained and for other
      good and valuable consideration, the receipt and sufficiency of which is hereby
      acknowledged, the parties hereto hereby agree as follows:

     

    1. Defined
      Terms.
      Unless
      otherwise defined herein, terms which are defined in the Purchase Agreement
      and
      used herein are so used as so defined; and the following terms shall have the
      following meanings:

     

    “Software
      Intellectual Property”
shall
      mean:

     

    (a) all
      software programs (including all source code, object code and all related
      applications and data files), whether now owned, upgraded, enhanced, licensed
      or
      leased or hereafter acquired by the Company, above;

     

    (b) all
      computers and electronic data processing hardware and firmware associated
      therewith;

     

    (c) all
      documentation (including flow charts, logic diagrams, manuals, guides and
      specifications) with respect to such software, hardware and firmware described
      in the preceding clauses (a) and (b); and

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    (d) all
      rights with respect to all of the foregoing, including, without limitation,
      any
      and all upgrades, modifications, copyrights, licenses, options, warranties,
      service contracts, program services, test rights, maintenance rights, support
      rights, improvement rights, renewal rights and indemnifications and
      substitutions, replacements, additions, or model conversions of any of the
      foregoing.

     

    “Copyrights”
shall
      mean (a) all copyrights, registrations and applications for registration,
issued
      or
      filed, including any reissues, extensions or renewals thereof, by or with the
      United States Copyright Office or any similar office or agency of the United
      States, any state thereof, or any other country or political subdivision
      thereof, or otherwise, including, all rights in and to the material constituting
      the subject matter thereof, including, without limitation, any referred to
      in
Schedule
      B
      hereto,
      and (b) any rights in any material which is copyrightable or which is protected
      by common law, United States copyright laws or similar laws or any law of any
      State, including, without limitation, any thereof referred to in Schedule
      B
      hereto.

     

    “Copyright
      License”
shall
      mean any agreement, written or oral, providing for a grant by the Company of
      any
      right in any Copyright, including, without limitation, any thereof referred
      to
      in Schedule
      B
      hereto.

     

    “Intellectual
      Property”
shall
      means, collectively, the Software Intellectual Property, Copyrights, Copyright
      Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses and Trade
      Secrets.

     

    “Obligations”
means
      all of the Company’s obligations under this Agreement and the Notes, in each
      case, whether now or hereafter existing, voluntary or involuntary, direct or
      indirect, absolute or contingent, liquidated or unliquidated, whether or not
      jointly owed with others, and whether or not from time to time decreased or
      extinguished and later decreased, created or incurred, and all or any portion
      of
      such obligations or liabilities that are paid, to the extent all or any part
      of
      such payment is avoided or recovered directly or indirectly from the Secured
      Party as a preference, fraudulent transfer or otherwise as such obligations
      may
      be amended, supplemented, converted, extended or modified from time to
      time.

     

    “Patents”
shall
      mean (a) all letters patent of the United States or any other country or any
      political subdivision thereof, and all reissues and extensions thereof,
      including, without limitation, any thereof referred to in Schedule
      B
      hereto,
      and (b) all applications for letters patent of the United States and all
      divisions, continuations and continuations-in-part thereof or any other country
      or any political subdivision, including, without limitation, any thereof
      referred to in Schedule
      B
      hereto.

     

    “Patent
      License”
shall
      mean all agreements, whether written or oral, providing for the grant by the
      Company of any right to manufacture, use or sell any invention covered by a
      Patent, including, without limitation, any thereof referred to in Schedule
      B
      hereto.

     

    “Security
      Agreement”
shall
      mean the a Security Agreement, dated as of the date hereof between Company
      and
      the Secured Party.

     

    
      
        
        

      

      
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    “Trademarks”
shall
      mean (a) all trademarks, trade names, corporate names, company names, business
      names, fictitious business names, trade styles, service marks, logos and other
      source or business identifiers, and the 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 any political
      subdivision thereof, or otherwise, including, without limitation, any thereof
      referred to in Schedule
      B
      hereto,
      and (b) all reissues, extensions or renewals thereof.

     

    “Trademark
      License”
shall
      mean any agreement, written or oral, providing for the grant by the Company
      of
      any right to use any Trademark, including, without limitation, any thereof
      referred to in Schedule
      B
      hereto.

     

    “Trade
      Secrets”
shall
      mean common law and statutory trade secrets and all other confidential or
      proprietary or useful information and all know-how obtained by or used in or
      contemplated at any time for use in the business of the Company (all of the
      foregoing being collectively called a “Trade
      Secret”),
      whether or not such Trade Secret has been reduced to a writing or other tangible
      form, including all documents and things embodying, incorporating or referring
      in any way to such Trade Secret, all Trade Secret licenses, including each
      Trade
      Secret license referred to in Schedule
      B
      hereto,
      and including the right to sue for and to enjoin and to collect damages for
      the
      actual or threatened misappropriation of any Trade Secret and for the breach
      or
      enforcement of any such Trade Secret license.

     

    2. Grant
      of Security Interest.
      In
      accordance with Section 3(m) of the Security Agreement, to secure the complete
      and timely payment, performance and discharge in full, as the case may be,
      of
      all of the Obligations, the Company hereby, unconditionally and irrevocably,
      pledges, grants and hypothecates to the Secured Party, a continuing security
      interest in, a continuing first lien upon, an unqualified right to possession
      and disposition of and a right of set-off against, in each case to the fullest
      extent permitted by law, all of the Company’s right, title and interest of
      whatsoever kind and nature in and to the Intellectual Property (the
“Security
      Interest”).

     

    3. Representations
      and Warranties.
      The
      Company hereby represents and warrants, and covenants and agrees with, the
      Secured Party as follows:

     

    (a) The
      Company has the requisite corporate power and authority to enter into this
      Agreement and otherwise to carry out its obligations thereunder. The execution,
      delivery and performance by the Company of this Agreement and the filings
      contemplated therein have been duly authorized by all necessary action on the
      part of the Company and no further action is required by the Company. This
      Agreement constitutes a legal, valid and binding obligation of the Company
      enforceable in accordance with its terms, except as enforceability may be
      limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
      affecting the enforcement of creditor’s rights generally.

     

    (b) The
      Company represents and warrants that it has no place of business or offices
      where its respective books of account and records are kept (other than
      temporarily at the offices of its attorneys or accountants) or places where
      the
      Intellectual Property is stored or located, except as set forth on Schedule
      A
      attached
      hereto;

     

    
      
        
        

      

      
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    (c) The
      Company is the sole owner of the Intellectual Property (except for exclusive
      and
      non-exclusive licenses granted by the Company in the ordinary course of
      business), free and clear of any liens, security interests, encumbrances, rights
      or claims, and is fully authorized to grant the Security Interest in and to
      pledge the Intellectual Property. There is not on file in any governmental
      or
      regulatory authority, agency or recording office an effective financing
      statement, security agreement, license or transfer or any notice of any of
      the
      foregoing (other than those that have been filed in favor of the Secured Party
      pursuant to this Agreement or the Security Agreement) covering or affecting
      any
      of the Intellectual Property. So long as this Agreement shall be in effect,
      the
      Company shall not execute and shall not knowingly permit to be on file in any
      such office or agency any such financing statement or other document or
      instrument (except to the extent filed or recorded in favor of the Secured
      Party
      pursuant to the terms of this Agreement or the Security Agreement), except
      for a
      financing statement covering assets acquired by the Company after the date
      hereof, provided that the value of the Intellectual Property covered by this
      Agreement along with the Collateral (as defined in the Security Agreement)
      is
      equal to at least 150% of the Obligations.

     

    (d) The
      Company shall at all times maintain its books of account and records relating
      to
      the Intellectual Property at its principal place of business and its
      Intellectual Property at the locations set forth on Schedule
      A
      attached
      hereto and may not relocate such books of account and records unless it delivers
      to the Secured Party at least 30 days prior to such relocation (i) written
      notice of such relocation and the new location thereof (which must be within
      the
      United States) and (ii) evidence that the necessary documents have been
      filed and recorded and other steps have been taken to perfect the Security
      Interest to create in favor of the Secured Party valid, perfected and continuing
      first priority liens in the Intellectual Property to the extent they can be
      perfected through such filings.

     

    (e) This
      Agreement creates in favor of the Secured Party a valid security interest in
      the
      Intellectual Property securing the payment and performance of the Obligations
      and, upon making the filings required hereunder, a perfected first priority
      security interest in such Intellectual Property to the extent that it can be
      perfected through such filings.

     

    (f) 
      Upon
      request of the Secured Party, the Company shall execute and deliver any and
      all
      agreements, instruments, documents, and papers as the Secured Party may request
      to evidence the Secured Party’s security interest in the Intellectual Property
      and the goodwill and general intangibles of the Company relating thereto or
      represented thereby, and the Company hereby appoints the Secured Party its
      attorney-in-fact to execute and file all such writings for the foregoing
      purposes, all acts of such attorney being hereby ratified and confirmed; such
      power being coupled with an interest is irrevocable until the Obligations have
      been fully satisfied and are paid in full.

     

    (g) The
      execution, delivery and performance of this Agreement does not conflict with
      or
      cause a breach or default, or an event that with or without the passage of
      time
      or notice, shall constitute a breach or default, under any agreement to which
      the Company is a party or by which the Company is bound. No consent (including,
      without limitation, from stock holders or creditors of the Company) is required
      for the Company to enter into and perform its obligations
      hereunder.

     

    
      
        
        

      

      
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    (h) The
      Company shall at all times maintain the liens and Security Interest provided
      for
      hereunder as valid and perfected first priority liens and security interests
      in
      the Intellectual Property to the extent they can be perfected by filing in
      favor
      of the Secured Party until this Agreement and the Security Interest hereunder
      shall terminate pursuant to Section 11. The Company hereby agrees to defend
      the
      same against any and all persons. The Company shall safeguard and protect all
      Intellectual Property for the account of the Secured Party. Without limiting
      the
      generality of the foregoing, the Company shall pay all fees, taxes and other
      amounts necessary to maintain the Intellectual Property and the Security
      Interest hereunder, and the Company shall obtain and furnish to the Secured
      Party from time to time, upon demand, such releases and/or subordinations of
      claims and liens which may be required to maintain the priority of the Security
      Interest hereunder. 

     

    (i) The
      Company will not transfer, pledge, hypothecate, encumber, license (except for
      non-exclusive licenses granted by the Company in the ordinary course of
      business), sell or otherwise dispose of any of the Intellectual Property without
      the prior written consent of the Secured Party.

     

    (j) The
      Company shall, within ten (10) days of obtaining knowledge thereof, advise
      the
      Secured Party promptly, in sufficient detail, of any substantial change in
      the
      Intellectual Property, and of the occurrence of any event which would have
      a
      material adverse effect on the value of the Intellectual Property or on the
      Secured Party’s security interest therein.

     

    (k) The
      Company shall permit the Secured Party and its representatives and agents to
      inspect the Intellectual Property at any time, and to make copies of records
      pertaining to the Intellectual Property as may be requested by the Secured
      Party
      from time to time.

     

    (l) The
      Company will take all steps reasonably necessary to diligently pursue and seek
      to preserve, enforce and collect any rights, claims, causes of action and
      accounts receivable in respect of the Intellectual Property.

     

    (m) The
      Company shall promptly notify the Secured Party in sufficient detail upon
      becoming aware of any attachment, garnishment, execution or other legal process
      levied against any Intellectual Property and of any other information received
      by the Company that may materially affect the value of the Intellectual
      Property, the Security Interest or the rights and remedies of the Secured Party
      hereunder.

     

    (n) All
      information heretofore, herein or hereafter supplied to the Secured Party by
      or
      on behalf of the Company with respect to the Intellectual Property is accurate
      and complete in all material respects as of the date furnished.

     

    (o) Schedule
      A
      attached
      hereto contains a list of all of the subsidiaries of Company.

     

    
      
        
        

      

      
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    (p) Schedule
      B
      attached
      hereto includes all Licenses, and all Patents and Patent Licenses, if any,
      owned
      by the Company in its own name as of the date hereof. Schedule
      B
      hereto
      includes all Trademarks and Trademark Licenses, if any, owned by the Company
      in
      its own name as of the date hereof. Schedule
      B
      hereto
      includes all Copyrights and Copyright Licenses, if any, owned by the Company
      in
      its own name as of the date hereof. Schedule
      B
      hereto
      includes all Trade Secrets and Trade Secret Licenses, if any, owned by the
      Company as of the date hereof. To the best of the Company’s knowledge, each
      License, Patent, Trademark, Copyright and Trade Secret is valid, subsisting,
      unexpired, enforceable and has not been abandoned. Except as set forth in
Schedule
      B,
      none of
      such Licenses, Patents, Trademarks, Copyrights and Trade Secrets is the subject
      of any licensing or franchise agreement. To the best of the Company’s knowledge,
      no holding, decision or judgment has been rendered by any Governmental Body
      which would limit, cancel or question the validity of any License, Patent,
      Trademark, Copyright and Trade Secrets . No action or proceeding is pending
      (i)
      seeking to limit, cancel or question the validity of any License, Patent,
      Trademark, Copyright or Trade Secret, or (ii) which, if adversely determined,
      would have a material adverse effect on the value of any License, Patent,
      Trademark, Copyright or Trade Secret. The Company has used and will continue
      to
      use for the duration of this Agreement, proper statutory notice in connection
      with its use of the Patents, Trademarks and Copyrights and consistent standards
      of quality in products leased or sold under the Patents, Trademarks and
      Copyrights.

     

    (q) With
      respect to any Intellectual Property:

     

    
      	 	
              (i)

            	
              such
                Intellectual Property is subsisting and has not been adjudged invalid
                or
                unenforceable, in whole or in part;

            


    

     

    
      	 	
              (ii)

            	
              such
                Intellectual Property is valid and
                enforceable;

            


    

     

    
      	 	
              (iii)

            	
              the
                Company has made all necessary filings and recordations to protect
                its
                interest in such Intellectual Property, including, without limitation,
                recordations of all of its interests in the Patents, Patent Licenses,
                Trademarks and Trademark Licenses in the United States Patent and
                Trademark Office and in corresponding offices throughout the world
                and its
                claims to the Copyrights and Copyright Licenses in the United States
                Copyright Office and in corresponding offices throughout the
                world;

            


    

     

    
      	 	
              (iv)

            	
              other
                than as set forth in Schedule
                B,
                the Company is the exclusive owner of the entire and unencumbered
                right,
                title and interest in and to such Intellectual Property and no claim
                has
                been made that the use of such Intellectual Property infringes on
                the
                asserted rights of any third party;
                and

            


    

     

    
      	 	
              (v)

            	
              the
                Company has performed and will continue to perform all acts and has
                paid
                all required fees and taxes to maintain each and every item of
                Intellectual Property in full force and effect throughout the world,
                as
                applicable.

            


    

     

    
      
        
        

      

      
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    (r) Except
      with respect to any Trademark or Copyright that the Company shall reasonably
      determine is of negligible economic value to the Company, the Company
      shall:

     

    (i) maintain
      each Trademark and Copyright in full force free from any claim of abandonment
      for non-use, maintain as in the past the quality of products and services
      offered under such Trademark or Copyright; employ such Trademark or Copyright
      with the appropriate notice of registration; not adopt or use any mark which
      is
      confusingly similar or a colorable imitation of such Trademark or Copyright
      unless the Secured Party shall obtain a perfected security interest in such
      mark
      pursuant to this Agreement; and not (and not permit any licensee or sublicensee
      thereof to) do any act or knowingly omit to do any act whereby any Trademark
      or
      Copyright may become invalidated;

     

    (ii) not,
      except with respect to any Patent that it shall reasonably determine is of
      negligible economic value to it, do any act, or omit to do any act, whereby
      any
      Patent may become abandoned or dedicated; and

     

    (iii) notify
      the Secured Party immediately if it knows, or has reason to know, that any
      application or registration relating to any Patent, Trademark or Copyright
      may
      become abandoned or dedicated, or of any adverse determination or development
      (including, without limitation, the institution of, or any such determination
      or
      development in, any proceeding in the United States Patent and Trademark Office,
      United States Copyright Office or any court or tribunal in any country)
      regarding its ownership of any Patent, Trademark or Copyright or its right
      to
      register the same or to keep and maintain the same.

     

    (s) Whenever
      the Company, either by itself or through any agent, employee, licensee or
      designee, shall file an application for the registration of any Patent,
      Trademark or Copyright with the United States Patent and Trademark Office,
      United States Copyright Office or any similar office or agency in any other
      country or any political subdivision thereof or acquire rights to any new
      Patent, Trademark or Copyright whether or not registered, report such filing
      to
      the Secured Party within five business days after the last day of the fiscal
      quarter in which such filing occurs.

     

    (t) The
      Company shall take all reasonable and necessary steps, including, without
      limitation, in any proceeding before the United States Patent and Trademark
      Office, United States Copyright Office or any similar office or agency in any
      other country or any political subdivision thereof, to maintain and pursue
      each
      application (and to obtain the relevant registration) and to maintain each
      registration of the Patents, Trademarks and Copyrights, including, without
      limitation, filing of applications for renewal, affidavits of use and affidavits
      of incontestability.

     

    
      
        
        

      

      
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    (u) In
      the
      event that any Patent, Trademark or Copyright included in the Intellectual
      Property is infringed, misappropriated or diluted by a third party, promptly
      notify the Secured Party after it learns thereof and shall, unless it shall
      reasonably determine that such Patent, Trademark or Copyright is of negligible
      economic value to it, which determination it shall promptly report to the
      Secured Party, promptly sue for infringement, misappropriation or dilution,
      to
      seek injunctive relief where appropriate and to recover any and all damages
      for
      such infringement, misappropriation or dilution, or take such other actions
      as
      it shall reasonably deem appropriate under the circumstances to protect such
      Patent, Trademark or Copyright. If the Company lacks the financial resources
      to
      comply with this Section 3(t), the Company shall so notify the Secured Party
      and
      shall cooperate fully with any enforcement action undertaken by the Secured
      Party on behalf of the Company.

     

    4. Defaults.
      The
      following events shall be “Events
      of Default”:

     

    (a) The
      occurrence of an Event of Default (as defined in the Notes) under the
      Notes;

     

    (b) Any
      representation or warranty of the Company in this Agreement or in the Security
      Agreement shall prove to have been incorrect in any material respect when made;
      

     

    (c) The
      failure by the Company to observe or perform any of its obligations hereunder
      or
      in the Security Agreement for ten (10) days after receipt by the Company of
      notice of such failure from the Secured Party; and

     

    (d) Any
      breach of, or default under, the Warrants.

     

    5. Duty
      To Hold In Trust.
      Upon
      the occurrence of any Event of Default and at any time thereafter, the Company
      shall, upon receipt by it of any revenue, income or other sums subject to the
      Security Interest, whether payable pursuant to the Notes or otherwise, or of
      any
      check, draft, note, trade acceptance or other instrument evidencing an
      obligation to pay any such sum, hold the same in trust for the Secured Party
      and
      shall forthwith endorse and transfer any such sums or instruments, or both,
      to
      the Secured Party for application to the satisfaction of the
      Obligations.

     

    6. Rights
      and Remedies Upon Default.
      Upon
      occurrence of any Event of Default and at any time thereafter, the Secured
      Party
      shall have the right to exercise all of the remedies conferred hereunder and
      under the Notes, and the Secured Party shall have all the rights and remedies
      of
      a secured party under the UCC and/or any other applicable law (including the
      Uniform Commercial Code of any jurisdiction in which any Intellectual Property
      is then located). Without limitation, the Secured Party shall have the following
      rights and powers:

     

    (a) The
      Secured Party shall have the right to take possession of the Intellectual
      Property and, for that purpose, enter, with the aid and assistance of any
      person, any premises where the Intellectual Property, or any part thereof,
      is or
      may be placed and remove the same, and the Company shall assemble the
      Intellectual Property and make it available to the Secured Party at places
      which
      the Secured Party shall reasonably select, whether at the Company’s premises or
      elsewhere, and make available to the Secured Party, without rent, all of the
      Company’s respective premises and facilities for the purpose of the Secured
      Party taking possession of, removing or putting the Intellectual Property in
      saleable or disposable form.

     

    
      
        
        

      

      
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    (b) The
      Secured Party shall have the right to operate the business of the Company using
      the Intellectual Property and shall have the right to assign, sell, lease or
      otherwise dispose of and deliver all or any part of the Intellectual Property,
      at public or private sale or otherwise, either with or without special
      conditions or stipulations, for cash or on credit or for future delivery, in
      such parcel or parcels and at such time or times and at such place or places,
      and upon such terms and conditions as the Secured Party may deem commercially
      reasonable, all without (except as shall be required by applicable statute
      and
      cannot be waived) advertisement or demand upon or notice to the Company or
      right
      of redemption of the Company, which are hereby expressly waived. Upon each
      such
      sale, lease, assignment or other transfer of Intellectual Property, the Secured
      Party may, unless prohibited by applicable law which cannot be waived, purchase
      all or any part of the Intellectual Property being sold, free from and
      discharged of all trusts, claims, right of redemption and equities of the
      Company, which are hereby waived and released.

     

    7. Applications
      of Proceeds.
      The
      proceeds of any such sale, lease or other disposition of the Intellectual
      Property hereunder shall be applied first, to the expenses of retaking, holding,
      storing, processing and preparing for sale, selling, and the like (including,
      without limitation, any taxes, fees and other costs incurred in connection
      therewith) of the Intellectual Property, to the reasonable attorneys’ fees and
      expenses incurred by the Secured Party in enforcing its rights hereunder and
      in
      connection with collecting, storing and disposing of the Intellectual Property,
      and then to satisfaction of the Obligations, and to the payment of any other
      amounts required by applicable law, after which the Secured Party shall pay
      to
      the Company any surplus proceeds. If, upon the sale, license or other
      disposition of the Intellectual Property, the proceeds thereof are insufficient
      to pay all amounts to which the Secured Party is legally entitled, the Company
      will be liable for the deficiency, together with interest thereon, at the rate
      of 15% per annum (the “Default
      Rate”),
      and
      the reasonable fees of any attorneys employed by the Secured Party to collect
      such deficiency. To the extent permitted by applicable law, the Company waives
      all claims, damages and demands against the Secured Party arising out of the
      repossession, removal, retention or sale of the Intellectual Property, unless
      due to the gross negligence or willful misconduct of the Secured
      Party.

     

    8. Costs
      and Expenses. The
      Company agrees to pay all out-of-pocket fees, costs and expenses incurred in
      connection with any filing required hereunder, including without limitation,
      any
      financing statements, continuation statements, partial releases and/or
      termination statements related thereto or any expenses of any searches
      reasonably required by the Secured Party. The Company shall also pay all other
      claims and charges which in the reasonable opinion of the Secured Party might
      prejudice, imperil or otherwise affect the Intellectual Property or the Security
      Interest therein. The Company will also, upon demand, pay to the Secured Party
      the amount of any and all reasonable expenses, including the reasonable fees
      and
      expenses of its counsel and of any experts and agents, which the Secured Party
      may incur in connection with (i) the enforcement of this Agreement, (ii) the
      custody or preservation of, or the sale of, collection from, or other
      realization upon, any of the Intellectual Property, or (iii) the exercise or
      enforcement of any of the rights of the Secured Party under the Notes. Until
      so
      paid, any fees payable hereunder shall be added to the principal amount of
      the
      Notes and shall bear interest at the Default Rate.

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    


    9. Responsibility
      for Intellectual Property.
      The
      Company assumes all liabilities and responsibility in connection with all
      Intellectual Property, and the obligations of the Company hereunder or under
      the
      Notes and the Warrants shall in no way be affected or diminished by reason
      of
      the loss, destruction, damage or theft of any of the Intellectual Property
      or
      its unavailability for any reason. 

     

    10. Security
      Interest Absolute.
      All
      rights of the Secured Party and all Obligations of the Company hereunder, shall
      be absolute and unconditional, irrespective of: (a) any lack of validity or
      enforceability of this Agreement, the Notes, the Warrants or any agreement
      entered into in connection with the foregoing, or any portion hereof or thereof;
      (b) any change in the time, manner or place of payment or performance of, or
      in
      any other term of, all or any of the Obligations, or any other amendment or
      waiver of or any consent to any departure from the Notes, the Warrants or any
      other agreement entered into in connection with the foregoing; (c) any exchange,
      release or nonperfection of any of the Intellectual Property, or any release
      or
      amendment or waiver of or consent to departure from any other Intellectual
      Property for, or any guaranty, or any other security, for all or any of the
      Obligations; (d) any action by the Secured Party to obtain, adjust, settle
      and
      cancel in its sole discretion any insurance claims or matters made or arising
      in
      connection with the Intellectual Property; or (e) any other circumstance which
      might otherwise constitute any legal or equitable defense available to the
      Company, or a discharge of all or any part of the Security Interest granted
      hereby. Until the Obligations shall have been paid and performed in full, the
      rights of the Secured Party shall continue even if the Obligations are barred
      for any reason, including, without limitation, the running of the statute of
      limitations or bankruptcy. The Company expressly waives presentment, protest,
      notice of protest, demand, notice of nonpayment and demand for performance.
      In
      the event that at any time any transfer of any Intellectual Property or any
      payment received by the Secured Party hereunder shall be deemed by final order
      of a court of competent jurisdiction to have been a voidable preference or
      fraudulent conveyance under the bankruptcy or insolvency laws of the United
      States, or shall be deemed to be otherwise due to any party other than the
      Secured Party, then, in any such event, the Company’s obligations hereunder
      shall survive cancellation of this Agreement, and shall not be discharged or
      satisfied by any prior payment thereof and/or cancellation of this Agreement,
      but shall remain a valid and binding obligation enforceable in accordance with
      the terms and provisions hereof. The Company waives all right to require the
      Secured Party to proceed against any other person or to apply any Intellectual
      Property which the Secured Party may hold at any time, or to marshal assets,
      or
      to pursue any other remedy. The Company waives any defense arising by reason
      of
      the application of the statute of limitations to any obligation secured
      hereby.

     

    11. Term
      of Agreement.
      This
      Agreement and the Security Interest shall terminate on the date on which all
      payments under the Notes have been made in full and all other Obligations have
      been paid or discharged. Upon such termination, the Secured Party, at the
      request and at the expense of the Company, will join in executing any
      termination statement with respect to any financing statement executed and
      filed
      pursuant to this Agreement. 

     

    12. Power
      of Attorney; Further Assurances.

     

    (a) The
      Company authorizes the Secured Party, and does hereby make, constitute and
      appoint it, and its respective officers, agents, successors or assigns with
      full
      power of substitution, as the Company’s true and lawful attorney-in-fact, with
      power, in its own name or in the name of the Company, to, after the occurrence
      and during the continuance of an Event of Default, (i) endorse any notes,
      checks, drafts, money orders, or other instruments of payment (including
      payments payable under or in respect of any policy of insurance) in respect
      of
      the Intellectual Property that may come into possession of the Secured Party;
      (ii) to sign and endorse any UCC financing statement or any invoice, freight
      or
      express bill, bill of lading, storage or warehouse receipts, drafts against
      debtors, assignments, verifications and notices in connection with accounts,
      and
      other documents relating to the Intellectual Property; (iii) to pay or discharge
      taxes, liens, security interests or other encumbrances at any time levied or
      placed on or threatened against the Intellectual Property; (iv) to demand,
      collect, receipt for, compromise, settle and sue for monies due in respect
      of
      the Intellectual Property; and (v) generally, to do, at the option of the
      Secured Party, and at the Company’s expense, at any time, or from time to time,
      all acts and things which the Secured Party deems necessary to protect, preserve
      and realize upon the Intellectual Property and the Security Interest granted
      therein in order to effect the intent of this Agreement, the Notes and the
      Warrants, all as fully and effectually as the Company might or could do; and
      the
      Company hereby ratifies all that said attorney shall lawfully do or cause to
      be
      done by virtue hereof. This power of attorney is coupled with an interest and
      shall be irrevocable for the term of this Agreement and thereafter as long
      as
      any of the Obligations shall be outstanding.

     

    (b) On
      a
      continuing basis, the Company will make, execute, acknowledge, deliver, file
      and
      record, as the case may be, in the proper filing and recording places in any
      jurisdiction, including, without limitation, the jurisdictions indicated on
      Schedule
      C,
      attached hereto, all such instruments, and take all such action as may
      reasonably be deemed necessary or advisable, or as reasonably requested by
      the
      Secured Party, to perfect the Security Interest granted hereunder and otherwise
      to carry out the intent and purposes of this Agreement, or for assuring and
      confirming to the Secured Party the grant or perfection of a security interest
      in all the Intellectual Property.

     

    (c) The
      Company hereby irrevocably appoints the Secured Party as the Company’s
      attorney-in-fact, with full authority in the place and stead of the Company
      and
      in the name of the Company, from time to time in the Secured Party’s discretion,
      to take any action and to execute any instrument which the Secured Party may
      deem necessary or advisable to accomplish the purposes of this Agreement,
      including the filing, in its sole discretion, of one or more financing or
      continuation statements and amendments thereto, relative to any of the
      Intellectual Property without the signature of the Company where permitted
      by
      law.

     

    13. Notices.
      All
      notices, requests, demands and other communications hereunder shall be in
      writing, with copies to all the other parties hereto, and shall be deemed to
      have been duly given when (i) if delivered by hand, upon receipt, (ii) if sent
      by facsimile, upon receipt of proof of sending thereof, (iii) if sent by
      nationally recognized overnight delivery service (receipt requested), the next
      business day or (iv) if mailed by first-class registered or certified mail,
      return receipt requested, postage prepaid, four days after posting in the U.S.
      mails, in each case if delivered to the following addresses:

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    


    
      	
              If
                to the Company:

            	
              FemOne,
                Inc.

            
	 	
              5600
                Avenida Encinas, Suite 130

            
	 	
              Carlsbad,
                California 92008

            
	 	
              Attention:
                Chief Executive Officer

            
	 	
              Telephone:
                (760) 448-2498

            
	 	
              Facsimile:
                (760) 931-1304

            
	 	 
	
              With
                copies to:

            	
              August
                Law Group, P.C.

            
	 	
              The
                Atrium

            
	 	
              19200
                Von Karman Avenue, Suite 500

            
	 	
              Irvine,
                California 92612

            
	 	
              Attention:
                Kenneth S. August, Esq.

            
	 	
              Telephone:
                (949) 752-7772

            
	 	
              Facsimile:
                (949) 752-7776

            
	 	 
	
              If
                to the Secured Party:

            	
              AJW
                Partners, LLC

            
	 	
              AJW
                Offshore, Ltd.

            
	 	
              AJW
                Qualified Partners, LLC

            
	 	
              New
                Millennium Capital Partners II, LLC

            
	 	
              1044
                Northern Boulevard

            
	 	
              Suite
                302

            
	 	
              Roslyn,
                New York 11576

            
	 	
              Attention:
                Corey Ribotsky

            
	 	
              Facsimile:
                516-739-7115

            
	 	 
	
              With
                copies to:

            	
              Ballard
                Spahr Andrews & Ingersoll, LLP

            
	 	
              1735
                Market Street, 51st
                Floor

            
	 	
              Philadelphia,
                Pennsylvania 19103

            
	 	
              Attention:
                Gerald J. Guarcini, Esquire

            
	 	
              Facsimile:
                215-864-8999

            


    

     

    14. Other
      Security.
      To the
      extent that the Obligations are now or hereafter secured by property other
      than
      the Intellectual Property or by the guarantee, endorsement or property of any
      other person, firm, corporation or other entity, then the Secured Party shall
      have the right, in its sole discretion, to pursue, relinquish, subordinate,
      modify or take any other action with respect thereto, without in any way
      modifying or affecting any of the Secured Party’s rights and remedies
      hereunder.

     

    15. Miscellaneous.

     

    (a) No
      course
      of dealing between the Company and the Secured Party, nor any failure to
      exercise, nor any delay in exercising, on the part of the Secured Party, any
      right, power or privilege hereunder or under the Notes shall operate as a waiver
      thereof; nor shall any single or partial exercise of any right, power or
      privilege hereunder or thereunder preclude any other or further exercise thereof
      or the exercise of any other right, power or privilege.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    


    (b) All
      of
      the rights and remedies of the Secured Party with respect to the Intellectual
      Property, whether established hereby or by the Notes or by any other agreements,
      instruments or documents or by law shall be cumulative and may be exercised
      singly or concurrently.

     

    (c) This
      Agreement and the Security Agreement constitute the entire agreement of the
      parties with respect to the subject matter hereof and is intended to supersede
      all prior negotiations, understandings and agreements with respect thereto.
      Except as specifically set forth in this Agreement, no provision of this
      Agreement may be modified or amended except by a written agreement specifically
      referring to this Agreement and signed by the parties hereto.

     

    (d) In
      the
      event that any provision of this Agreement is held to be invalid, prohibited
      or
      unenforceable in any jurisdiction for any reason, unless such provision is
      narrowed by judicial construction, this Agreement shall, as to such
      jurisdiction, be construed as if such invalid, prohibited or unenforceable
      provision had been more narrowly drawn so as not to be invalid, prohibited
      or
      unenforceable. If, notwithstanding the foregoing, any provision of this
      Agreement is held to be invalid, prohibited or unenforceable in any
      jurisdiction, such provision, as to such jurisdiction, shall be ineffective
      to
      the extent of such invalidity, prohibition or unenforceability without
      invalidating the remaining portion of such provision or the other provisions
      of
      this Agreement and without affecting the validity or enforceability of such
      provision or the other provisions of this Agreement in any other
      jurisdiction.

     

    (e) No
      waiver
      of any breach or default or any right under this Agreement shall be considered
      valid unless in writing and signed by the party giving such waiver, and no
      such
      waiver shall be deemed a waiver of any subsequent breach or default or right,
      whether of the same or similar nature or otherwise.

     

    (f) This
      Agreement shall be binding upon and inure to the benefit of each party hereto
      and its successors and assigns.

     

    (g) Each
      party shall take such further action and execute and deliver such further
      documents as may be necessary or appropriate in order to carry out the
      provisions and purposes of this Agreement.

     

    (h) This
      Agreement shall be construed in accordance with the laws of the State of New
      York, except to the extent the validity, perfection or enforcement of a security
      interest hereunder in respect of any particular Intellectual Property which
      are
      governed by a jurisdiction other than the State of New York in which case such
      law shall govern. Each of the parties hereto irrevocably submit to the exclusive
      jurisdiction of any New York State or United States Federal court sitting in
      Manhattan county over any action or proceeding arising out of or relating to
      this Agreement, and the parties hereto hereby irrevocably agree that all claims
      in respect of such action or proceeding may be heard and determined in such
      New
      York State or Federal court. The parties hereto agree that a final judgment
      in
      any such action or proceeding shall be conclusive and may be enforced in other
      jurisdictions by suit on the judgment or in any other manner provided by law.
      The parties hereto further waive any objection to venue in the State of New
      York
      and any objection to an action or proceeding in the State of New York on the
      basis of forum non conveniens.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    


    (i) EACH
      PARTY HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
      ANY
      CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. THE SCOPE
      OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY DISPUTES THAT MAY
      BE
      FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATER OF THIS AGREEMENT,
      INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS
      AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES
      THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO A
      BUSINESS RELATIONSHIP, THAT EACH PARTY HAS ALREADY RELIED ON THIS WAIVER IN
      ENTERING INTO THIS AGREEMENT AND THAT EACH PARTY WILL CONTINUE TO RELY ON THIS
      WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS AND
      REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT
      SUCH PARTY HAS KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHTS TO A JURY TRIAL
      FOLLOWING SUCH CONSULTATION. THIS WAIVER IS IRREVOCABLE, MEANING THAT,
      NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IT MAY NOT BE MODIFIED EITHER
      ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
      RENEWALS AND SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF
      A
      LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY
      THE
      COURT. 

     

    (j) This
      Agreement may be executed in any number of counterparts, each of which when
      so
      executed shall be deemed to be an original and, all of which taken together
      shall constitute one and the same Agreement. In the event that any signature
      is
      delivered by facsimile transmission, such signature shall create a valid binding
      obligation of the party executing (or on whose behalf such signature is
      executed) the same with the same force and effect as if such facsimile signature
      were the original thereof.

     

    


     

    


     

    


     

    [REMAINDER
      OF PAGE INTENTIONALLY LEFT BLANK]


    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
      executed on the day and year first above written.

     

    
      FEMONE,
        INC.

       

      By: 
        /s/ Ray W. Grimm,
        Jr.                                          


      Ray
        W.
        Grimm, Jr.

      Chief
        Executive Officer

       

       

      AJW
        PARTNERS, LLC

      By:
        SMS
        Group, LLC

       

      By:                                                               
        

      Corey
        S.
        Ribotsky

      Manager
        

       

       

      AJW
        OFFSHORE, LTD.

      By:
        First
        Street Manager II, LLC

      
         

        By:                                                               
          

        Corey
          S.
          Ribotsky

        Manager
          

         

      

      


      AJW
        QUALIFIED PARTNERS, LLC

      By:
        AJW
        Manager, LLC

      
         

        By:                                                               
          

        Corey
          S.
          Ribotsky

        Manager
          

         

         

      

      NEW
        MILLENNIUM CAPITAL 

      PARTNERS,
        II, LLC

      By:
        First
        Street Manager II, LLC

      
         

        By:                                                               
          

        Corey
          S.
          Ribotsky

        Manager
          

         

      

    


    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    
      SCHEDULE
        A



     

    Principal
      Place of Business of the Company:

     

    5600
      Avenida Encinas

    Suite
      #130

    Carlsbad,
      CA 92008

    


    


    Locations
      Where Collateral is Located or Stored:

     

    5600
      Avenida Encinas

    Suite
      #130

    Carlsbad,
      CA 92008

    


    5115
      Avenida Encinas, Suite H

    Carlsbad,
      CA 92008

    


    List
      of Subsidiaries of the Company:

     

    FemOne,
      Inc. (incorporated in California)

    Femone
      Canada, Inc. (incorporated in Canada)

    BIOPRO
      Technology Australasia Pty Ltd. (incorporated in Australia)

     

    
      
        
          
          

        

        
          15

          
            

          

        

        
          
          

        

      

    

     

    SCHEDULE
      B

     

     

    
      
        	
                A.

                 

              	
                Patents
                  and Patent Licenses:

                 

              
	 	
                None

                 

              
	 	 
	
                B.

                 

              	
                Trademarks,
                  Trademark Licenses, Tradenames and Logos:

                 

              
	 	
                Trademark
                  applications for the following marks have been filed with the U.S.
                  Patent
                  and Trademark Office (the “PTO”)
                  on behalf of the Company:

                 

              


      

       

       

    

    
      	
              Mark

            	
              Application
                No.

            	
              Country

            	
              Filing
                Date

            
	
              FemOne

            	
              78451149

            	
              USA

            	
              07/15/2004/

            
	
              2SIS

            	
              78451158

            	
              USA

            	
              07/15/2004

            
	
              2B-Balanced

            	
              78453954

            	
              USA

            	
              07/21/2004

            
	
              2B-Strong

            	
              78453965

            	
              USA

            	
              07/21/2004

            
	
              2B-You

            	
              78453968

            	
              USA

            	
              07/21/2004

            
	
              2Day

            	
              78453972

            	
              USA

            	
              07/21/2004

            
	
              2Enhance

            	
              78453978

            	
              USA

            	
              07/21/2004

            
	
              2Feel
                Great

            	
              78453981

            	
              USA

            	
              07/21/2004

            
	
              2Relieve

            	
              78453986

            	
              USA

            	
              07/21/2004

            
	
              2Share

            	
              78453989

            	
              USA

            	
              07/21/2004

            
	
              2Wear

            	
              78453991

            	
              USA

            	
              07/21/2004

            
	
              P2R

            	
              78453996

            	
              USA

            	
              07/21/2004

            
	
              Little
                Girl Fun, Big Girl Ingenuity 

            	
              78454018

            	
              USA

            	
              07/21/2004

            
	
              LeanChoices

            	
              78481221

            	
              USA

            	
              09/09/2004

            
	
              BIOPRO
                Technology

            	
              78480567

            	
              USA

            	
              09/08/2004

            
	
              2Energize

            	
              78481236

            	
              USA

            	
              09/09/2004

            
	
              2Slim

            	
              78481250

            	
              USA

            	
              09/09/2004

            
	
              BioNutratonic

            	
              78481948

            	
              USA

            	
              09/10/2004

            
	
              BIOPRO
                Q-Link

            	
              78502786

            	
              USA

            	
              10/04/2004

            
	
              Econo
                Fuel Chip

            	
              78568079

            	
              USA

            	
              02/15/2005

            
	
              QX-3

            	
              78601406

            	
              USA

            	
              04/04/2005

            
	
              You3

            	
              78568054

            	
              USA

            	
              02/15/2005

            


    

     

    
      In
        addition to the foregoing marks, the Company currently uses the following
        trademarks, trade names and/or corporate names in connection with its
        products:

       

      1.     Channoine®
        Cosmetics

      2. 
BioNutratonic

      3. 
BIOPRO
        QLink

      4. 
BIOPRODUCE

      5. 
BIOTRON

    

     

    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    

     

    The
      Company currently uses the following logos in connection with its
      products:

     

    

     


    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

    
      The
        Company is licensed to use the following tradenames for the sole purpose
        of
        distributing its products:

       

      1.     Channoine 
        

       

      2.     Blue
        Planet for Men

       

      3.     Twenty-Four
        7

       

    

    C.  Copyrights
      and Copyright Licenses

     

    None

     

    D.     Trade
      Secrets and Trade Secret Licenses

     

    
      
        	 	
                1.

              	
                As
                  a result of the Company’s acquisition of FemOne, Inc., a California
                  corporation, the Company has the authority to use certain confidential
                  information and trade secrets for the sole purpose of distributing
                  Channoine products in North America.


              


      

      
        	 	 	 


      

      
        	 	 	Pursuant to a certain Distribution Agreement dated
                February 1, 2004 between the Company and Energy Transfer Corporation,
                the
                Company learned of, and is obligated to maintain as confidential,
                certain
                trade secrets that pertain to the design and manufacturing techniques
                used
                by Energy Transfer Corporation in connection with the research and
                development, manufacture/assembly, marketing and sales of its Biotron
                Chip.


      

    

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    


    SCHEDULE
      C

     

    Jurisdictions:
      

     

    California

     

    Nevada

     

    Australia

     

     

    20