SECURITY INTEREST AGREEMENT
SECURITY
INTEREST AGREEMENT (“Security
Agreement”),
dated
as of November
12, 2007, by and among EPD Investment Co., LLC, a California limited liability
company (“Secured
Party”
and
collectively with any assignee or designee, the “Secured
Parties”)
and
Neah Power Systems, Inc., a Nevada corporation
(the
“Debtor”).
RECITALS
A. Reference
is made to (i) the Purchase Agreement dated November 9, 2007 (the “Purchase
Agreement”)
to
which the Debtor and Secured Party
are
parties, and (ii) the Transaction Agreements (as defined in the
Purchase
Agreement),
including, without limitation, the Note. Capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the relevant Transaction
Agreements.
B. Pursuant
to the Transaction Agreements, the Debtor has certain obligations to each
of
the
Secured Parties (all such obligations under all Transaction Agreements, the
“Obligations”).
C.
The
Debtor has determined that it shall benefit from the execution of the
Transaction
Agreements and the transactions contemplated thereby. In furtherance thereof,
and not in limitation thereof, the Debtor has deemed that the execution
and
delivery of this Security Interest Agreement to which it is a party, and the
Debtor’s
performance of its obligations under each of them, to be necessary and
convenient to the
conduct, promotion or attainment of the business of the Debtor from the
Purchase Agreement
or otherwise.
D. In
order
to induce the Secured Parties to execute and deliver the Transaction
Agreements
and to make the payments to the Debtor contemplated thereby, and as contemplated
by
the
Purchase Agreement and the Note, the Debtor has agreed to grant to the Secured
Parties a security interest in the Collateral (as defined below) to secure
the
due and punctual fulfillment
of the Obligations. The Secured Parties are willing to enter into the
Purchase
Agreement and the other Transaction Agreements only upon receiving the Debtor’s
execution
of this Security Interest Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises, the mutual covenants and conditions
contained herein, and for other good and valuable consideration, the receipt
and
sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Grant
of Security Interest.
(a) In
order
to secure the due and punctual fulfillment of the Obligations, the Debtor
hereby
grants, conveys, transfers and assigns to the Secured Parties (and to each
of
them based on their
respective Allocable Shares, as defined below) a continuing security interest
in
the Collateral.
(b) For
purposes of this Agreement, the following terms shall have the meanings
indicated:
“COLLATERAL”
is all right, title and interest of Debtor in and to all of the following,
whether
now owned or hereafter arising or acquired and wherever located: All assets
of
the
Debtor, including, but not limited to: all personal and fixture property of
every kind and
nature, including without limitation all goods (including inventory, equipment
and any accessions
thereto), instruments (including promissory notes), documents, accounts
(including
accounts receivable), chattel paper (whether tangible or electronic), deposit
accounts, letter-of-credit rights (whether or not the letter of credit is
evidenced by a writing),
commercial tort claims, Securities and all other investment property, supporting
obligations,
any other contract rights or rights to the payment of money, insurance claims
and
proceeds, and all general intangibles (including all payment intangibles);
all
Equipment;
all Intellectual Property; and any and all claims, rights and interests in
any
of the
above, and all guaranties and security for any of the above, and all
substitutions and replacements
for, additions, accessions, attachments, accessories, and improvements to,
and
proceeds (including proceeds of any insurance policies, proceeds of proceeds
and
claims
against third parties) of, any and all of the above, and all Debtor’s books
relating to any
and
all of the above and includes, without limiting the generality of the above,
the
Intellectual
Property listed in the attached Exhibit
B.
“CODE”
is
the Uniform Commercial Code, in effect in the State of Nevada as in effect
from
time
to time.
“COPYRIGHTS”
are all copyrights, copyright rights, applications or registrations and like
protections
in each work or authorship or derivative work, whether published or not
(whether
or not it is a trade secret) now or later existing, created, acquired or
held.
“EQUIPMENT”
has the meaning set forth in the Code and includes all present and future
machinery, equipment, tenant improvements, furniture, fixtures, vehicles, tools,
parts and attachments
in which Debtor has any interest.
“INTELLECTUAL
PROPERTY” is all present and future (a) Copyrights, (b) trade secret
rights,
including all rights to unpatented inventions and know-how, and confidential
information; (c) mask work or similar rights available for the protection of
semiconductor chips;
(d) Patents; (e) Trademarks; (f) computer software and computer software
products; (g)
designs and design rights; (h) technology; (i) all claims for damages by way
of
past, present
and future infringement of any of the rights included above; (j) all licenses
or
other rights
to
use any property or rights of a type described above; a schedule of Intellectual
Property
and a schedule of Intellectual Property applications is provided in Exhibit
B,
but
such
listing shall not limit the Secured Party’s interest in any other Intellectual
Property or Intellectual
Property applications.
2
“PATENTS”
are patents, patent applications and like protections, including improvements,
divisions, continuations, renewals, reissues, extensions and
continuations-in-part
of the same.
“SECURITIES”
has the meaning ascribed to it in the Securities Act of 1933, as amended,
and
includes, but is not necessarily limited to, common stock, preferred stock,
warrants, rights and other options, promissory notes or other instruments
reflecting obligations of other
entities; in furtherance of the foregoing, but not in limitation thereof, the
term “Securities”
specifically includes the securities listed in the attached Exhibit
A.
“TRADEMARKS”
are trademarks, servicemarks, trade styles, and trade names, whether
or
not
any of the foregoing are registered, and all applications to register and
registrations of
the
same and like protections, and the entire goodwill of the business of Debtor
connected
with and symbolized by any such trademarks.
(c)
The
security interests granted pursuant to this Section (the “Security Interests”)
are granted
as security only and shall not subject any of the Secured Parties to, or
transfer or in any way
affect or modify, any obligation or liability of the Debtor under any of the
Collateral or any transaction
which gave rise thereto.
(d)
The
term “Allocable Share” means, with respect to each Secured Party (if there is
more
than
one Secured Party), as of the relevant date, the fraction equal to (i) the
outstanding principal of the Notes then held by such Secured Party, divided
by
(ii) the aggregate outstanding principal of the Notes then held by all Secured
Parties. If there is only one Secured Party, the “Allocable Share” shall mean
one hundred percent (100%).
Section
2.
Filing; Further Assurances.
(a) The
Debtor will, at its expense, cause to be searched the public records with
respect
to the Collateral and will execute, deliver, file and record (in such manner
and
form as each
of
the Secured Parties may require), or permit each of the Secured Parties to
file
and record. as its attorney in fact, any financing statement, any carbon,
photographic or other reproduction of a
financing statement or this Security Agreement (which shall be sufficient as
a
financing statement
hereunder), any specific assignments or other paper that may be reasonably
necessary or
desirable, or that the Secured Parties may request, in order to create,
preserve, perfect or validate
any Security Interest or to enable each of the Secured Parties to exercise
and
enforce its rights hereunder with respect to any of the Collateral. The Debtor
hereby appoints each Secured Party as Debtor’s attorney-in-fact to execute in
the name and behalf of Debtor such additional financing statements as such
Secured Party may request.
3
(b) Each
Secured Party has designated an Agent as provided in the Section titled
“Agent”
below. Among other things, such Agent shall be agent of each such Secured Party
for execution of and identification on any financing statement or similar
instrument referring to or describing the Collateral.
(c)
The
Agent is authorized to execute and file any and all financing statements
desired
to be filed by the relevant Secured Party to reflect the security interest
in
the Collateral in any
and
all jurisdictions (including the U.S. Patent and Trademark Office). For such
purposes, the
Debtor irrevocably appoints the Agent,
with
full power of substitution to execute and file such financing statements
naming the Debtor as debtor thereon.
Section
3. Representations and Warranties of Debtor. The
Debtor hereby represents and
warrants to each Secured Party (a) that the Debtor is, or to the extent that
certain of the Collateral is to be acquired after the date hereof, will be,
the
owner of the Collateral free from any adverse lien, security interest or
encumbrance; (b) that
no
financing statement covering the Collateral is on file in any public office,
other
than the financing statements filed pursuant to this Security Agreement; and
(c)
that
the
statements made
in
the Recitals of this Security Interest Agreement, which are deemed incorporated
herein by
reference, are true, accurate and complete.
Section
4. Covenants of Debtor. The
Debtor hereby covenants and agrees with each Secured
Party that the Debtor (a) will, at the Debtor’s sole cost and expense, defend
the Collateral against
all claims and demands of all persons at any time claiming any interest therein
junior to the
Secured Party’s interest; (b) will provide the Secured Party with prompt written
notice of (i) any
change in the chief executive officer of the Debtor or the office where the
Debtor maintains its
books
and records pertaining to the Collateral; (ii) the movement or location of
all
or a material
part of the Collateral to or at any address other than the address of Debtor
set
forth in its public filings with the U.S. Securities and Exchange
Commission;
and
(iii) any facts which constitute a Debtor
Event of Default (as such term is defined below), or which, with the giving
of
notice and/or
the passage of time, could or would constitute a Debtor Event of Default,
pursuant to the Section
titled “Debtor Events of Default” below; (c) will promptly pay any and all
taxes, assessments
and governmental charges upon the Collateral prior to the date penalties are
attached thereto,
except to the extent that such taxes, assessments and charges shall be contested
in good faith
by
the Debtor; (d) will immediately notify the Secured Party of any event causing
a
substantial
loss or diminution in the value of all or any material part of the Collateral
and the amount
or
an estimate of the amount of such loss or diminution; (e) will have and maintain
adequate
insurance at all times with respect to the Collateral, for such other risks
as
are customary in
the
Debtor’s industry for the respective items included in the Collateral, such
insurance to be payable to the Secured Party and the Debtor as their respective
interests may appear, and shall provide
for a minimum of ten (10) days prior written notice of cancellation to the
Secured Party, and
Debtor shall furnish the Secured Party with certificates or other evidence
satisfactory to the Secured Party of compliance with the foregoing insurance
provisions; (f) will not sell or offer to sell or otherwise assign, transfer
or
dispose of the Collateral or any interest therein, without the prior
written consent of the Secured Party, except in the ordinary course of business;
(g) will keep
the
Collateral free from any adverse lien, security interest or
encumbrance
and in
good order and repair, reasonable wear and tear excepted, and will not waste
or
destroy the Collateral or any part thereof; and (h) will not use the Collateral
in material violation of any statute or ordinance the violation of which
could
materially and adversely affect the Debtor’s business.
4
Section
5. Records Relating To Collateral. The
Debtor will keep its records concerning
the Collateral at its offices designated in the caption of this Security
Interest Agreement
or at such other place or places of business of which the Secured Party shall
have been notified
in writing no less than ten (10) days prior thereto. The Debtor will hold and
preserve such records
and chattel paper and will permit representatives of the Secured Party at any
time during normal
business hours upon reasonable notice to examine and inspect the Collateral
and
to make abstracts
from such records and chattel paper, and will furnish to the Secured Party
such
information
and reports regarding the Collateral as the Secured Party may from time to
time
reasonably
request.
Section
6.
General Authority. From
and
during the term of any Debtor Event of Default,
the Debtor hereby appoints the Secured Party the Debtor’s lawful attorney, with
full power
of
substitution, in the name of the Debtor, for the sole use and benefit of the
Secured Party, but
at
the Debtor’s expense, to exercise, all or any of the following powers with
respect to all or any
of
the Collateral:
(a) to
demand, xxx for, collect, receive and give acquittance for any and all monies
due or
to
become due;
(b) to
receive, take, endorse, assign and deliver all checks, notes, drafts, documents
and
other
negotiable and non- negotiable instruments and chattel paper taken or received
by the Secured
Party;
(c) to
settle, compromise, prosecute or defend any action or proceeding with respect
thereto;
(d) to
sell,
transfer, assign or otherwise deal in or with the same or the proceeds
thereof
or the related goods securing the Collateral, as fully and effectually as if
the
Secured Party were
the
sole and absolute owner thereof;
(e) to
extend
the time of payment of any or all thereof and to make any allowance and
other
adjustments with reference thereto; and
to
discharge any taxes, liens, security interests or other encumbrances at any
time
placed
thereon;
provided
that the Secured Party or the Agent shall give the Debtor not less than ten
(10)
business days
prior written notice of the time and place of any sale or other intended
disposition of any of the
Collateral.
5
The
exercise by the Secured Party or the Agent of or failure to so exercise any
authority granted
herein shall in no manner affect Debtor’s liability to the Secured Party, and
provided, further,
that the Secured Party and the Agent shall be under no obligation or duty to
exercise any of
the
powers hereby conferred upon them and they shall be without liability for any
act or failure to
act in
connection with the collection of, or the preservation of, any rights under
any
of the Collateral
and Secured Party shall not be required to proceed against any other person
or
entity who
or
which has guaranteed the performance of the Obligations or provided any security
therefor before
proceeding against Debtor or the Collateral.
Section
7.
Debtor Events of Default.
(a) The
Debtor shall be in default under this Security Agreement upon the occurrence
of
any of
the following (each, a “Debtor
Event of Default”):
| (i) an Event of Default (as defined in the Note); |
| (ii) any representation or warranty made by the Debtor in this Security Interest Agreement shall be false or misleading in any material respect; or |
| (iii) Debtor shall breach any covenant of Debtor in this Security Interest Agreement or in any other document or instrument executed by Debtor in favor of or for the benefit of the Secured Parties as contemplated by any of the Transaction Agreements. |
(b) The
Debtor hereby irrevocably agrees that, upon the occurrence of a Debtor Event
of
Default, the Debtor shall be deemed to have consented to an immediate conveyance
and transfer
to the Secured Party of the copyrights and all other rights the Debtor may
have
in the software
included in the Collateral.
In
furtherance of the foregoing, and not in limitation thereof,
the Debtor will, upon the occurrence of a Debtor Event of Default, deliver
to
the Secured Party
copies of the source code of the relevant software, with accompanying written
assignment of
the
software to the Secured Party. Without limiting the foregoing, such source
code
and assignment shall be in form sufficient to enable the Secured Party to
register the software in Secured Party’s name with the Copyright Register. The
Debtor hereby agrees to take all steps necessary
or appropriate, as requested by the Secured Party, to effectuate and reflect
such conveyance
and transfer or assignment to Secured Party. In all events, such conveyance,
transfer or
assignment shall be deemed to vest title in such software in the Secured
Party.
6
(c) In
furtherance of the foregoing and not in limitation thereof, the Debtor
acknowledges and agrees that the Secured Party may, upon the occurrence of
a
Debtor Event of Default,
seek the immediate entry of a preliminary injunction prohibiting the Debtor’s
use of such software
in any shape, way or manner, including, but not necessarily limited to, through
the sale of
products that use any of such software, and the Debtor hereby irrevocably agrees
that it will not contest
an application seeking entry of a preliminary injunction and that it will accept
the entry of such
injunction.
Section
8. Remedies Upon Debtor Event of Default.
If any
Debtor Event of Default shall
have occurred, then in addition to the provisions of Section 7 hereof, the
Secured Party may exercise
all the rights and remedies of a secured party under the Code. The Secured
Party
may require
the Debtor to assemble all or any part of the Collateral and make it available
to the Secured
Party at a place to be designated by the Secured Party which is reasonably
convenient. The
Secured Party shall give the Debtor ten (10) business days prior written notice
of the Secured Party’s intention to make any public or private sale or sale at a
broker’s board or on a securities exchange
of the Collateral. At any such sale the Collateral may be sold in one lot as
an
entirety or in
separate parcels, as the Secured Party, in its sole discretion, may determine.
The Secured Party shall
not
be obligated to make any such sale pursuant to any such notice. The Secured
Party may, without
notice or publication, adjourn any public or private sale or cause the same
to
be adjourned from
time
to time by announcement at the time and place fixed for the sale, and such
sale
may be made
at
any time or place to which the same may be adjourned. The Secured Party, instead
of exercising
the power of sale herein conferred upon it, may proceed by a suit or suits
at
law or in equity
to
foreclose the Security Interests and sell the Collateral, or any portion
thereof, under a judgment
or decree of a court or courts of competent jurisdiction.
Section
9. Application of Collateral and Proceeds. The
proceeds of any sale of, or other
realization upon, all or any part of the Collateral shall be applied in the
following order of priorities:
(a) first, to pay the reasonable expenses of such sale or other realization,
including, without
limitation, reasonable attorneys’ fees, and all expenses, liabilities and
advances reasonably
incurred or made by the Secured Party in connection therewith, and any other
unreimbursed expenses for which the Secured Party is to be reimbursed pursuant
to the Section titled “Expenses; Secured Party’s Lien” below; (b) second, to the
payment of the Obligations in such
order of priority as the Secured Party, in its sole discretion, shall determine;
and (c) finally, to
pay to
the Debtor, or its successors or assigns, or as a court of competent
jurisdiction may direct,
any surplus then remaining from such proceeds.
Section
10. Expenses; Secured Party’s Lien. If
any
Debtor Event of Default shall have occurred,
the Debtor will forthwith upon demand pay to the Secured Party: (a) the amount
which the
Secured Party may have been required to pay to free any of the Collateral from
any lien thereon;
and (b) the amount of any and all reasonable out-of-pocket expenses, including,
without limitation,
the reasonable fees and disbursements of its counsel, and of any agents not
regularly in its employ, which the Secured Party may incur in connection with
the collection, sale or other disposition
of any of the Collateral.
7
Section
11. Termination of Security Interests; Release of Collateral. Upon
the
earlier to occur of (a) payment or other
satisfaction in full of the Note held by the Secured Party or (b) 45 days after
the Registration Date (as defined in the Purchase Agreement), the Security
Interests shall terminate
and all rights to the Collateral shall revert to the Debtor. Upon any such
termination of the
Security Interests or release of Collateral, the Secured Party will, at the
Debtor’s expense, to the
extent permitted by law, execute and deliver to the Debtor such documents as
the
Debtor shall reasonably
request to evidence the termination of the Security Interests or the release
of
such Collateral,
as the case may be.
Section
12. Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified
herein, shall be (a) personally served, (b) deposited in the mail, registered
or
certified, return
receipt requested, postage prepaid, (c) delivered by reputable air courier
service with charges
prepaid, or (d) transmitted by hand delivery, telegram, or facsimile, addressed
as set forth below
or
to such other address as such party shall have specified most recently by
written notice given in accordance herewith. Any notice or other communication
required or permitted to be given hereunder shall be deemed effective (i) upon
hand delivery or delivery by facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address
or
number designated
below (if delivered on a business day during normal business hours where such
notice is to be received), or the first business day following such delivery
(if
delivered other than on a business
day during normal business hours where such notice is to be received) or (ii)
on
the second
business day following the date of mailing by express courier service or on
the
fifth business
day after deposited in the mail, in each case, fully prepaid, addressed to
such
address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses
for
such communications
shall be for (i) the Debtor as provided in the Purchase Agreement,
(ii)
for each Secured Party as provided in the Purchase Agreement for notices to
the
Purchaser and (iii) for the Agent as provided in the Purchase
Agreement
for notices to the Purchaser.
Any party hereto may from time to time change its address or facsimile number
for
notices under this Section in the manner contemplated by the Purchase
Agreement.
Section
13.Agent.
(a) Anything
in the other provisions of this Security Interest Agreement to the contrary
notwithstanding, the Secured Party may designate another entity to act as agent
(the “Agent”)
for
the Secured Party with respect to any one or more of the rights of Secured
Party
hereunder, including, but not necessarily limited to, the right to hold the
security interest and/or be
named
as secured party (as agent for the Secured Party) in any filed financing
statement and to take
action in the name and stead of the Secured Party hereunder. Such designation
may be made with
or
without power of substitution, Such designation shall remain in effect until
canceled by the Secured Party, as provided herein; provided, however, that
such
cancellation shall not affect the
validity of any action theretofore taken by such agent pursuant to this Security
Interest Agreement. The Debtor acknowledges and agrees to honor such designation
and acknowledges that
the
Agent is acting as the agent of the Secured Party and not as a
principal.
8
(b) Each
Secured Party hereby confirms that the Secured Party has designated EPD
Investment Co. LLC as its initial Agent, with full right of
substitution.
(c) if
there
is more than one Secured Party, the Agent shall act as agent for all Secured
Parties.
Any revocation of the authority of the Agent or the designation of an alternate
Agent shall
be
done only by Secured Parties who represent a Majority in Interest of all the
Note Holders (as defined below) at that time; provided that at all times all
Secured Parties shall be represented by
one
and the same Agent. The term “Note Holder” means the Holder, as of the relevant
date, of the
Note.
The term “Majority in Interest” means, as of the relevant date, with respect to
the relevant
classification of Note Holders, one or more Note Holders whose respective
outstanding principal
amounts of the Notes held by each of them, as of such date, aggregate more
than
fifty percent
(50%) of the Allocable Shares on that date.
Section
14.Miscellaneous.
(a) No
failure on the part of the Secured Party to exercise, and no delay in
exercising, and
no
course of dealing with respect to, any right, power or remedy under this
Security Interest Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise
by
the Secured
Party of any right, power or remedy under this Security Interest Agreement
preclude the exercise,
in whole or in part, of any other right, power or remedy. The remedies in this
Security Interest Agreement are cumulative and are not exclusive of any other
remedies provided by law. Neither this Security Interest Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally but
only by a statement in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is
sought.
(b) The
execution and delivery by Debtor of this Security Interest Agreement and all
documents
delivered in connection herewith have been duly and validly authorized by all
necessary
corporate action of Debtor and this Agreement and all documents delivered in
connection
herewith have been duly and validly executed and delivered by Debtor. The
execution and
delivery by Debtor of this Security Interest Agreement and all documents
delivered in connection
herewith will not result in a breach or default of or under the Certificate
of
Incorporation,
By-laws or any agreement, contract or indenture of Debtor. This Security
Interest Agreement
and all documents delivered in connection therewith are legal, valid and binding
obligations
of Debtor enforceable against Debtor in accordance with their
terms.
9
(c)
In
the event that any action is taken by Debtor or Secured Party in connection
with
the
this
Security Interest Agreement, or any related document or matter, the losing
party
in such legal
action, in addition to such other damages as he or it may be required to pay,
shall pay reasonable
attorneys’ fees to the prevailing party.
Section
15. Separability. If
any
provision hereof shall prove invalid or unenforceable in any
jurisdiction whose laws shall be deemed applicable, the other provisions hereof
shall remain in
full
force and effect in such jurisdiction and shall be liberally construed in favor
of the Secured Party.
Section
16.Governing
Law.
(a)
This
Security Interest Agreement shall be governed by and construed in accordance
with the laws of the State of Nevada for contracts to be wholly performed in
such state
and
without giving effect to the principles thereof regarding the conflict of laws.
To
the
extent determined by the court, the
Debtor shall reimburse the Secured Party for any reasonable legal fees and
disbursements incurred
by the Secured Party in enforcement of or protection of any of its rights under
this Security
Interest Agreement. Nothing in this Section shall affect or limit any right
to
serve process
in any other manner permitted by law.
(b)
The
Debtor and the Secured Party acknowledge and agree that irreparable damage
would
occur in the event that any of the provisions of this Security Interest
Agreement were not performed
in accordance with their specific terms or were otherwise breached. It is
accordingly agreed
that the parties shall be entitled to an injunction or injunctions to prevent
or
cure breaches of
the
provisions of this Security Interest Agreement and to enforce specifically
the
terms and provisions
hereof, this being in addition to any other remedy to which any of them may
be
entitled
by law or equity.
Section
17. Jury Trial Waiver. The
Debtor and the Secured Party hereby waive a trial by
jury
in any action, proceeding or counterclaim brought by either of the parties
hereto against the
other
in respect of any matter arising out of or in connection with the Note or this
Security Interest
Agreement.
Section
18. Assignment. Only
in
connection with the transfer of all of the rights under the
Transaction Agreements in accordance with their terms, a Secured Party may
assign or transfer
the whole of its security interest granted hereunder. Any transferee of the
Collateral shall be
vested
with all of the rights and powers of the assigning Secured Party hereunder
with
respect to
the
Collateral.
10
Section
19. Waiver. The
Debtor waives any right that it may have to require Secured Party
to
proceed against any other person, or proceed against or exhaust any other
security, or pursue
any other remedy Secured Party may have.
IN
WITNESS WHEREOF, the Parties have executed this Security Interest Agreement
as
of
the
day, month and year first above written.
SECURED
PARTY:
EPD
INVESTMENT CO. LLC
By:
_________________________________
Name:
Title:
COMPANY:
By:
_________________________________
Name:
Title:
11
EXHIBIT
A
SECURITIES
All
capital stock of Neah Power Systems, Inc., a Washington
corporation.
12
EXHIBIT
B
INTELLECTUAL
PROPERTY
U.S.
Patents:
| 1. |
U.S.
Patent No. 6,641,948
entitled “Fuel Cells Having Silicon Substrates And/Or Sol-Gel Derived
Support Structures” issued November 4, 2003. (401) Expires: April 5,
2020.
|
| 2. |
U.S.
Patent No. 6,720,105
entitled “Metallic Blocking Layers Integrally Associated With Fuel Cell
Electrode Structures And Fuel Cell Electrode Stack Assemblies” issued
April 13, 2004. (401C2) Expires: April 5,
2020.
|
| 3. |
U.S.
Patent No. 6,808,840
entitled “Silicon-Based Fuel Cell Electrode Structures And Fuel Cell
Electrode Stack Assemblies” issued October 26, 2004. (401C3) Expires:
April 5, 2020.
|
| 4. |
U.S.
Patent No. 6,811,916
entitled “Fuel Cell Electrode Pair Assemblies And Related Methods” issued
November 2, 2004. (402) Expires: December 12,
2021.
|
| 5. |
U.S.
Patent No. 6,852,443
entitled “Fuel Cells Having Silicon Substrates And/Or Sol-Gel Derived
Support Structures” issued February 8, 2005. (401D1) Expires: April 5,
2020
|
| 6. |
U.S.
Patent No. 6,924,058
entitled “Hydrodynamic Transport and Flow Channel Passageways Associated
with Fuel Cell Electrode Structures and Fuel Cell Electrode Assemblies”
issued Aug. 2, 2005. (401C5) Expires: April 5,
2020.
|
| 7. |
U.S.
Patent No. 7,105,245 entitled
“Fuel Cell System Reactant Supply and Effluent Storage Cartridges” issued
September 12, 2006. (404C2)
Expires: December 20, 2024.
|
| 8. |
U.S.
Patent No. 7,118,822
entitled “Fuel Cell Electrode Pair Assemblies and Related Methods” issued
October 10, 2006. (402C1) Expires: October 16,
2022.
|
| 9. |
U.S.
Xxx. No. 7,157,177
entitled “Porous Fuel Cell Electrode Structures Having Conformal
Electrically Conductive Layers Thereon” issued January 2, 2007. (403)
Expires: Sept. 29, 2023.
|
| 10. |
U.S.
Xxx. No. 7,198,864
entitled “Silicon-Based Fuel Cell Electrode Structures” issued April 3,
2007. (401D2)
Expires: April
5, 2020.
|
| 11. |
U.S.
Xxx. No. 7,205,665
entitled “Porous Silicon Undercut Etching Deterrent Masks and Related
Methods” issued April 17, 2007. (414) Expires Nov. 11,
2025.
|
Foreign
Patents:
| 1. |
Chinese
Patent No. CN1205685C entitled “Fuel Cells Having Silicon Substrates
And/Or Sol-Gel Derived Support Structures” issued June 1, 2005.
(401CN)
|
13
U.S.
Utility Patent Applications:
| 1. |
U.S.
Xxx. Appl. No. 10/251,518 entitled “Fuel Cells Having Internal Multistream
Laminar Flow” filed September 20, 2002.
(404C1)
|
| 2. |
U.S.
Xxx. Appl. No. 10/966,721 entitled “Nitric Acid Regeneration Fuel Cell
Systems” filed Oct. 15, 2004. (405)
|
| 3. |
U.S.
Xxx. Appl. No. 10/892,876 entitled “Fuel Cells Having Cross Directional
Laminar Flowstreams” filed Jul. 16, 2004.
(406)
|
| 4. |
U.S.
Xxx. Appl. No. 11/313,550 entitled
“Detachable Reactant Supply and Effluent Storage Cartridges, Layered
Pump
Assemblies, and Rotatable Fluid Transfer Valve Disk Assemblies for
Use
with Regenerative Fuel Cell Systems” filed Dec. 20, 2005.
(413)
|
| 5. |
U.S.
Xxx. Appl. No. 11/530,815 entitled “Closed Liquid Feed Fuel Cell Systems
And Reactant Supply And Effluent Storage Cartridges Adapted For Use
With
The Same” filed September 11, 2006.
(404C3)
|
| 6. |
U.S.
Xxx. Appl. No. 11/669,895 entitled “Liquid-liquid Fuel Cell Systems Having
Flow-Through Anodes and Flow-By Cathodes” filed January 31, 2007.
(416)
|
PCT
and Foreign Patent Applications:
| 1. |
Canadian
Xxx. Appl. No. 2,392,115 entitled “Fuel Cells Having Silicon Substrates
And/Or Sol-Gel Derived Support Structures” filed July 27, 2002.
(401CA)
|
| 2. |
Chinese
Xxx. Appl. No. 00818422.4 entitled “Fuel Cells Having Silicon Substrates
And/Or Sol-Gel Derived Support Structures” filed July 26, 2002.
(401CN)
|
| 3. |
European
Xxx. Appl. No. 00991398.9 entitled “Fuel Cells Having Silicon Substrates
And/Or Sol-Gel Derived Support Structures” filed May 17, 2002.
(401EP)
|
| 4. |
Japanese
Xxx. Appl. No. 2001-537811 entitled “Fuel Cells Having Silicon Substrates
And/Or Sol-Gel Derived Support Structures” filed May 17, 2002.
(401JP)
|
| 5. |
Canadian
Xxx. Appl. No. 2,444,688 entitled “Porous Silicon And Sol-Gel Derived
Electrode Structures And Assemblies For Use With Fuel Cell Systems” filed
October 17, 2003. (401CCA)
|
| 6. |
Chinese
Xxx. Appl. No. 02811803.0 entitled “Porous Silicon And Sol-Gel Derived
Electrode Structures And Assemblies For Use With Fuel Cell Systems” filed
October 20, 2003. (401CCN)
|
| 7. |
European
Xxx. Appl. No. 02731430.1 entitled “Porous Silicon And Sol-Gel Derived
Electrode Structures And Assemblies For Use With Fuel Cell Systems” filed
November 19, 2003. (401CEP)
|
| 8. |
Japanese
Xxx. Appl. No. 2002-584409 entitled “Porous Silicon And Sol-Gel Derived
Electrode Structures And Assemblies For Use With Fuel Cell Systems” filed
October 20, 2003. (401CJP)
|
| 9. |
Canadian
Xxx. Appl. No. 2,472,232 entitled “Porous Fuel Cell Electrode Structures
Having Conformal Electrically Conductive Layers Thereon” filed July 3,
2004. (403CA)
|
| 10. |
Chinese
Xxx. Appl. No. 03801936.1 entitled “Porous Fuel Cell Electrode Structures
Having Conformal Electrically Conductive Layers Thereon” filed July 2,
2004. (403CN)
|
| 11. |
European
Xxx. Appl. No. 03701220.0 entitled “Porous Fuel Cell Electrode Structures
Having Conformal Electrically Conductive Layers Thereon” filed July 3,
2004. (403EP)
|
| 12. |
Japanese
Xxx. Appl. No. 2003-558944 entitled “Porous Fuel Cell Electrode Structures
Having Conformal Electrically Conductive Layers Thereon” filed July 2,
2004. (403JP)
|
14
