EX 10.2


    

      Execution
        Version

    

     

    TRADEMARK
      SECURITY AGREEMENT

     

    This
      Agreement is dated the 28th day of September, 2007, among Diomed Holdings,
      Inc.,
      a Delaware corporation, Diomed, Inc., a Delaware corporation, each with its
      chief executive office and principal place of business located at One Dundee
      Park, Andover, Massachusetts 01810, (each, a “Grantor”
and
      collectively, the “Grantors”
),
      and
      Hercules Technology Growth Capital, Inc., a Maryland corporation, with its
      chief
      executive office and principal place of business located at 400 Hamilton Avenue,
      Suite 310, Palo Alto, California 94301 (“Secured
      Party”).

     

    RECITALS

     

    A. Each
      Grantor owns the Trademarks (as defined in the Loan Agreement), Trademark
      registrations and Trademark applications and are party, whether individually
      or
      collectively, to the Trademark Licenses to which it is a party, all as listed
      on
Schedule
      1
      hereto:

     

    B. Grantors
      and Secured Party are parties to a Loan and Security Agreement dated as of
      September 28, 2007 and all ancillary documents entered into in connection with
      such Loan and Security Agreement, all as may be amended from time to time
      (hereinafter referred to collectively as the “Loan
      Agreement”);

     

    C. Pursuant
      to the terms of the Loan Agreement, each Grantor has granted to Secured Party
      a
      first priority security interest in all tangible and intangible personal
      property of such Grantor, including all right, title and interest of such
      Grantor in, to and under all of such Grantor’s Trademarks, Trademark Licenses to
      which it is a party (as such terms are defined in the Loan Agreement), and
      all
      products and proceeds thereof, including, without limitation, any and all causes
      of action which may exist by reason of infringement or dilution thereof or
      injury to the associated goodwill, to secure the payment of all amounts owing
      under the Loan Agreement.

     

    D. All
      capitalized terms not defined herein shall have the meanings set forth in the
      Loan Agreement.

     

    NOW,
      THEREFORE, in consideration of the premises, each Grantor hereby agrees with
      Secured Party as follows:

     

    1.
      To
      secure the complete and timely satisfaction of all Secured Obligations, each
      Grantor hereby grants and conveys to Secured Party a continuing security
      interest in and lien on all of such Grantor’s right, title and interest in and
      to, whether presently existing or hereafter arising or acquired, the Trademarks
      (including those listed on Schedule
      1
      hereto
      (as the same may be amended pursuant hereto from time to time)), and Trademark
      Licenses to which it is a party, including, without limitation, all renewals
      thereof, all proceeds of infringement suits, the right to sue for past, present
      and future infringements and all rights corresponding thereto throughout the
      world, and the goodwill of the business to which each of the Trademarks
      relates.

     

    2.
      Each
      Grantor represents, warrants and covenants that:

     

    a)
      Such
      Grantor is the sole and exclusive owner of the entire and unencumbered right,
      title and interest in and to each of the Trademarks owned by such Grantor,
      free
      and clear of any liens, charges and encumbrances, except for Permitted Liens,
      including, without limitation, pledges, assignments, licenses, shop rights
      and
      covenants by such Grantor not to sue third persons, except
      for any
      license disclosed in Schedule
      1;

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    b)
      The
      Trademarks are subsisting and have not been adjudged invalid or
      unenforceable;

     

    c)
      To the
      best of such Grantor’s knowledge, each of the Trademarks is valid and
      enforceable;

     

    d)
      No
      claim has been made that the use of any of the Trademarks does or may violate
      the rights of any third person;

     

    e)
      such
      Grantor has the unqualified right to enter into this Trademark Security
      Agreement and perform its terms;

     

    f)
      Each
      Grantor has used, and will continue to use for the duration of this Trademark
      Security Agreement, proper statutory notice in connection with its use of the
      Trademarks; and

     

    g)
      Each
      Grantor has used, and will continue to use for the duration of this Trademark
      Security Agreement, consistent standards of quality of products sold under
      the
      Trademarks.

     

    3.
      Each
      Grantor hereby grants to Secured Party the right to visit such Grantor’s
      facilities to inspect the products at reasonable times during regular business
      hours. Each Grantor shall do any and all acts reasonably required by Secured
      Party to ensure such Grantor’s compliance with paragraph
      2(g).

     

    4.
      Each
      Grantor agrees that, until all of the Secured Obligations shall have been
      satisfied in full in cash, such Grantor will not enter into any agreement
      relating to such Grantor’s Trademarks (for example, a license agreement) which
      is inconsistent with such Grantor’s obligations under this Trademark Security
      Agreement, without Secured Party’s prior written consent; provided,
      that so
      long as no Default or Event of Default shall have occurred and be continuing,
      such Grantor may grant licenses to third parties to use the Trademarks in the
      ordinary course of business of such Grantor and such third party on arm’s length
      and customary business terms.

     

    5.
      If,
      before the Secured Obligations shall have been satisfied in full in cash, any
      Grantor shall obtain rights to any new Trademarks, the provisions of
paragraph
      1
      shall
      automatically apply thereto and such Grantor shall give Secured Party prompt
      written notice thereof.

     

    6.
      Each
      Grantor authorizes Secured Party to unilaterally modify this Trademark Agreement
      by amending Schedule
      1
      to
      include any future Trademarks covered by paragraphs
      1
      and
5
      hereof.

     

    7.
      If any
      Event of Default shall have occurred and be continuing, Secured Party shall
      have, in addition to all other rights and remedies given it by this Trademark
      Security Agreement or the Loan Agreement, those allowed by law and the rights
      and remedies of a secured party under the Uniform Commercial Code as enacted
      in
      any jurisdiction in which the Trademarks may be located and, without limiting
      the generality of the foregoing, the Secured Party may immediately, without
      demand of performance and without other notice (except as set forth below)
      or
      demand whatsoever to any Grantor, all of which are hereby expressly waived,
      and
      without advertisement, sell at public or private sale or otherwise realize
      upon,
      all or from time to time any of the Trademarks, or any interest which the
      applicable Grantor may have therein, and after deducting from the proceeds
      of
      sale or other disposition of the Trademarks all expenses (including all
      reasonable expenses for brokers’ fees and legal services), shall apply the
      residue of such proceeds toward the payment of the Secured Obligations. Any
      remainder of the proceeds after payment in full in cash of the Secured
      Obligations shall be paid over to the Grantors. Notice of any sale or other
      disposition of the Trademarks shall be given to the Lead Borrower at least
      ten
      (10) days before the time of any intended public or private sale or other
      disposition of the Trademarks is to be made, which each Grantor hereby agrees
      shall be reasonable notice of such sale or other disposition. At any such sale
      or other disposition Secured Party or its assignee may, to the extent
      permissible under applicable law, purchase the whole or any part of the
      Trademarks sold, free from any right of redemption on the part of Grantors,
      which right is hereby waived and released.

     

    
      
        
        

      

      
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    8.
      At any
      time and from time to time, upon the written request of Secured Party, and
      at
      the sole expense of Grantors, each Grantor will promptly and duly execute and
      deliver such further instruments and documents and take such further action
      as
      Secured Party may reasonably request for the purpose of obtaining or preserving
      the full benefits of this Agreement and the Loan Agreement, and of the rights
      and powers herein and therein granted, including, without limitation, the filing
      of any additional, supplemental, or amended Trademark Security Agreements,
      or
      the filing of any financing statements or continuation statements under the
      Uniform Commercial Code in effect in any jurisdiction with respect to the Liens
      created hereby or in any of the Loan Agreements.

     

    9.
      At
      such time as Grantors shall completely satisfy all of the Secured Obligations
      (other than inchoate indemnity obligations) in cash, this Trademark Security
      Agreement shall terminate and Secured Party shall execute and deliver to the
      Grantors all terminations, or other instruments as may be necessary or proper
      to
      terminate the security interest granted herein and to terminate the applicable
      Grantor’s obligations hereunder, subject to any disposition thereof which may
      have been made by Secured Party pursuant hereto.

     

    10.
      Any
      and all reasonable fees, costs and expenses, of whatever kind or nature,
      including the reasonable attorneys’ fees and legal expenses incurred by Secured
      Party in connection with the preparation of this Trademark Security Agreement
      and all other documents relating hereto and the consummation of this
      transaction, the filing or recording of any documents (including all taxes
      in
      connection therewith) in public offices, the payment or discharge of any taxes,
      counsel fees, maintenance fees, encumbrances or otherwise protecting,
      maintaining or preserving the Trademarks, or in defending or prosecuting any
      actions or proceedings arising out of or related to the Trademarks, shall be
      borne and paid by Grantors jointly and severally on demand by Secured Party
      and
      shall be added to the principal amount of the Secured Obligations and shall
      bear
      interest at the highest applicable Default Rate.

     

    11.
      Each
      Grantor shall have the duty, through counsel reasonably acceptable to Secured
      Party, to prosecute diligently any Trademark applications pending as of the
      date
      of this Trademark Security Agreement or thereafter until the Secured Obligations
      shall have been paid in full in cash, to make federal application on registrable
      but unregistered Trademarks (provided that such application will not
      significantly compromise such Grantor’s competitive position), to file and
      prosecute opposition and cancellation proceedings and to do any and all acts
      which are necessary or desirable to preserve and maintain all rights in the
      Trademarks. Any expenses incurred in connection with the Trademarks shall be
      borne by Grantors. The Grantors shall only abandon a Trademark if, while
      exercising good faith and reasonable business judgment, such Grantor determines
      it is prudent.

     

    12.
      Each
      Grantor shall have the right, with the prior written consent of Secured Party,
      which will not be unreasonably withheld, to bring any opposition proceedings,
      cancellation proceedings or lawsuit in its own name to enforce or protect the
      Trademarks, in which event Secured Party may, if necessary, be joined as a
      nominal party to such suit if Secured Party shall have been satisfied in the
      exercise of its reasonable judgment that it is not thereby incurring any risk
      of
      liability because of such joinder. Each Grantor shall promptly, upon demand,
      reimburse and indemnify Secured Party for all damages, costs and expenses,
      including reasonable attorneys’ fees incurred by Secured Party, in accordance
      with the Loan Agreement.

     

    
      
        
        

      

      
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    13.
      Each
      Grantor hereby authorizes and empowers Secured Party to make, constitute and
      appoint any officer or agent of Secured Party as Secured Party may select,
      in
      its exclusive discretion, as such Grantor’s true and lawful attorney-in-fact,
      with the power, after and during the continuance of an Event of Default, to
      endorse such Grantor’s name on all applications, documents, papers and
      instruments necessary for Secured Party to use the Trademarks, or to grant
      or
      issue any exclusive or nonexclusive license under the Trademarks to anyone
      else,
      or necessary for Secured Party to, pledge, convey or otherwise transfer title
      in
      or dispose of the Trademarks to any third person as a part of Secured Party’s
      realization on such collateral upon acceleration of the Secured Obligations
      following an Event of Default. Each Grantor hereby ratifies all that such
      attorney shall lawfully do or cause to be done by virtue hereof. This power
      of
      attorney being coupled with an interest shall be irrevocable for the life of
      this Trademark Security Agreement.

     

    14.
      If
      any Grantor fails to comply with any of their obligations hereunder, Secured
      Party may do so in such Grantor’s name or in Secured Party’s name, but at
      Grantors’ expense, and Grantors hereby jointly and severally agree to reimburse
      Secured Party in full for all expenses, including reasonable attorneys’ fees,
      incurred by Secured Party in protecting, defending and maintaining the
      Trademarks.

     

    15.
      No
      course of dealing between any Grantor and Secured Party, nor any failure to
      exercise, nor any delay in exercising, on the part of Secured Party, any right,
      power or privilege hereunder or under the Loan Agreement 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.

     

    16. All
      of
      Secured Party’s rights and remedies with respect to the Trademarks, whether
      established hereby or by the Loan Agreement, or any other agreements or by
      law,
      shall be cumulative and may be exercised singularly or
      concurrently.

     

    17.
      The
      provisions of this Trademark Security Agreement are severable, and if any clause
      or provision shall be held invalid and unenforceable in whole or in part in
      any
      jurisdiction, then such invalidity or unenforceability shall affect only such
      clause or provision, or part thereof, in such jurisdiction, and shall not in
      any
      manner affect such clause or provision in any other jurisdiction, or any other
      clause or provision of this Trademark Security Agreement in any
      jurisdiction.

     

    18.
      This
      Trademark Security Agreement is subject to modification only by a writing signed
      by the parties hereto, except as provided in paragraph
      6.

     

    19.
      This
      Trademark Security Agreement shall be binding upon each Grantor and Secured
      Party and their respective permitted successors and assigns, and shall inure
      to
      the benefit of Grantors, Secured Party and the respective permitted successors
      and assigns of such Grantor and Secured Party.

     

    20.
      The
      validity and interpretation of this Trademark Security Agreement and the rights
      and obligations of the parties shall be governed by the laws of the State of
      California.

     

    21.
      Section 11.2 (Notice)
      of the
      Loan Agreement is hereby incorporated herein in its entirety, save that
      references therein to the term Lender shall be deemed to be references to
      Secured Party herein and references therein to the term Borrower or Borrowers
      shall be deemed to be references to any Grantor or the Grantors, as applicable,
      herein.

     

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      of Page Intentionally Left Blank]

    


    
      
        
        

      

      
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    IN
      WITNESS WHEREOF,
      the
      execution hereof under seal as of the day and year first above written.


     


    
      	 	
              DIOMED
                HOLDINGS, INC.

            
	 	 	 
	 	
              By:

            	 
	 	 	
              Name:

            
	 	 	
              Title:

            
	 	 	 
	 	
              DIOMED,
                INC.

            
	 	 	 
	 	
              By:

            	 
	 	 	
              Name:

            
	 	 	
              Title:

            


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    

      
        	 	
                HERCULES
                  TECHNOLOGY GROWTH
CAPITAL, INC.

              
	 	
                By:

              	 
	 	
                Name:

              	
                K.
                  Nicholas Martitsch

              
	 	
                Its:
                  

              	
                Associate
                  General Counsel

              


      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    SCHEDULE
      1 TO

     

    TR
      ADEMARK SECURITY AGREEMENT

     

    TRADEMARKS
      AND TRADEMARK APPLICATIONS:

    


    
      	
              Trademark

            	 	
              Applicant/Registrant

            	 	
              Registration/

              Application
                No.

            	 	
              Registration/
File
                Date

            	 
	 	 	 	 	 	 	 	 
	
              OPTIGUIDE

            	 	
              Diomed,
                Inc.

            	 	
              2055737

            	 	
              04/22/1997

            	 
	 	 	 	 	 	 	 	 
	
              ELVT

            	 	
              Diomed,
                Inc.

            	 	
              2715197

            	 	
              05/13/2003

            	 
	 	 	 	 	 	 	 	 
	
              ALC
                (Block Letters)

            	 	
              Diomed,
                Inc.

            	 	
              3044703

            	 	
              01/17/2006

            	 
	 	 	 	 	 	 	 	 
	
              SPOTLIGHT
                OPS

            	 	
              Diomed,
                Inc.

            	 	
              77-020683

            	 	
              10/30/2006

            	 
	 	 	 	 	 	 	 	 
	
              SITE
                MARKS (Block Letters)

            	 	
              Diomed,
                Inc.

            	 	
              77-032377

            	 	
              10/30/2006

            	 
	 	 	 	 	 	 	 	 
	
              SPOTLIGHT
                (Block
                Letters)

            	 	
              Diomed,
                Inc.

            	 	
              78-804678

            	 	
              02/01/2006