EXHIBIT 10.7.A
THIS AMENDMENT amends that certain Extension of Collaboration Agreement
entered into by and among Neah Power Systems, Inc., a Nevada corporation (the
"COMPANY"), Neah Power Systems, Inc., a Washington corporation (the
"SUBSIDIARY") and Novellus Systems, Inc. ("NOVELLUS") dated May 24, 2006 (the
"LETTER AGREEMENT"), and is entered into by and among the Company, the
Subsidiary and Novellus as of August 22, 2006 (the "AMENDMENT").
WHEREAS, the parties desire to amend the Letter Agreement in certain
respects;
NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Capitalized terms used but not defined herein shall
have the meanings given such terms in the Letter Agreement.
2. Section 2 (a) is hereby deleted and replaced in its
entirety by the following:
" Within fourteen (14) days following the execution of this Letter
(unless extended by mutual agreement of Purchaser and Novellus), Novellus shall
be granted the right to purchase up to 4,705,000 shares of Purchaser Common
Stock at a purchase price per share of $0.001 ("Warrant Stock"). This Warrant
Stock may be acquired by Novellus or its permitted designee[s] immediately or at
any time on or before April 30, 2011, after which date the right to acquire such
Warrant Stock shall expire if unexercised. Novellus' right to purchase Warrant
Stock and retain Warrant Stock shall be subject to Neah and Novellus achieving
certain business and/or technical milestones under the Collaboration Agreement,
as extended hereby, all as shall be negotiated reasonably and in good faith on
or before September 22, 2006 (the "Milestones"). If Neah and Novellus fail to
agree on the appropriate Milestones and/or vesting schedule on or before
September 22, 2006, then either party shall have the right to terminate this
letter, effective five (5) days following delivery of written notice to
terminate to the other party. Any such termination shall cause the Collaboration
Agreement to terminate and shall cause Novellus' right to purchase the Warrant
Stock to terminate; provided that any obligations of Neah to pay Novellus any
amounts hereunder or pursuant to the Collaboration Agreement that have accrued
prior to termination shall survive such termination. If Novellus elects to
purchase Warrant Stock before achieving the specified Milestones to be
negotiated, such Warrant Stock shall be subject to a right in Purchaser to
recover all or the portion of these Warrant Stock that relate to the business
and/or technical milestones that Neah and Novellus have failed to achieve
("Repurchase Right"). The terms of this Repurchase Right are as specified in the
Warrant, except as may be modified as part of the agreement of the parties as to
the Milestones. The parties agree that Novellus shall only be entitled to
recover from Purchaser the purchase price paid for any Warrant Stock subject to
this Repurchase Right, irrespective of the actual price of Purchaser's Common
Stock on the date of exercise of this Repurchase Right."
3. Except as amended hereby, the Letter Agreement shall remain
unmodified and is hereby ratified in all respects.
4. This Amendment may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed and
delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
[SIGNATURES ON NEXT FOLLOWING PAGE]
IN WITNESS WHEREOF, the Company, the Subsidiary and Novellus have executed this
Amendment as of the date first written above.
COMPANY:
-------
NEAH POWER SYSTEMS, INC.
(a Nevada corporation)
/s/ Xxxx Xxxxxxxxxx
-------------------
By: Xxxx Xxxxxxxxxx
Its: President & CEO
SUBSIDIARY:
----------
NEAH POWER SYSTEMS, INC.
(a Washington corporation)
/s/ Xxxx Xxxxxxxxxx
-------------------
By: Xxxx Xxxxxxxxxx
Its: President & CEO
NOVELLUS:
--------
NOVELLUS SYSTEMS, INC.
(a California corporation)
/s/ Xxxxxxx van den Hoek
------------------------
By: Xxxxxxx van den Hoek
Its: Executive VP
