NEAH POWER SYSTEMS, INC. May 20, 2008
NEAH
POWER SYSTEMS, INC.
May
20,
2008
CAMHZN
Master LDC
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Ladies
and Gentlemen:
We
refer
to (i) the Purchase Agreement (the “Purchase Agreement”) dated November 27, 2007
between Neah Power Systems, Inc., a Nevada corporation (the “Borrower”), and
CAMHZN Master LDC (the “Lender”), (ii) the 12% Secured Promissory Note (the
“Note”) in the principal amount of $500,000 dated November 27, 2007 issued by
the Borrower to the Lender, (iii) the Security Interest and Pledge Agreement
dated November 27, 2007 (the “Pledge Agreement”) by and between the Borrower and
the Lender, (iv) the Warrant dated November 27, 2007 issued by the Borrower
to
the Lender (the “Warrant”), and (v) the letter agreement by and between the
Borrower and the Lender, November 27, 2007 (the “Letter Agreement”). The
Purchase Agreement, the Note, the Pledge Agreement, the Warrant and the Letter
Agreement are referred to herein as the “Loan Documents.” Unless otherwise
defined herein, capitalized terms have the meanings assigned to them in the
Loan
Documents.
The
Borrower confirms and agrees as follows:
1. Outstanding
Debt.
The
Borrower is indebted to the Lender in the principal sum of $500,000, plus all
accrued interest thereon and costs and expenses (including legal expenses)
incurred in connection therewith (the “Obligations”). The Obligations arose
under, and are evidenced by, the Loan Documents and the documents, agreements
and instruments pertaining thereto. The Obligations are secured, among other
things, by a first priority security interest in the Pledged Securities, and
all
products and proceeds of the foregoing in any form.
2. Default.
The
Borrower acknowledges that (i) certain events of default have occurred and
are
continuing under the Loan Documents and (ii) all obligations on the Lender’s
part to make advances or otherwise provide financial accommodations to the
Borrower have terminated. The Borrower waives any requirement of notice with
respect to existing events of default, or any other notice to which the Borrower
may be entitled under the Loan Documents.
3. Issuances.
Simultaneously with the execution and delivery of this letter, the Borrower
is
(i) in accordance with the terms of the Loan Documents, issuing to the Lender
54,500,000 shares
of the Borrower’s common stock, par value $.0001 per share as additional
Collateral and (ii) in consideration of the forbearance described in paragraph
4
below, issuing to the Lender
7,857,142 shares of such common stock (5,000,000 of which shall be free-trading
and 2,857,142 of which shall be restricted); provided,
however,
that the free-trading shares shall be credited against 8,000,000 free-trading
shares that are being released from Collateral. The shares issued under this
paragraph 3 are referred to as the “Shares”. The Borrower represents and
warrants to the Lender that the Shares are duly authorized, fully paid and
nonassessable, free and clear of any liens or encumbrances of any
kind.
Lender
agrees that it will comply with the prospectus delivery requirements of the
Securities Act as applicable to it.
CAMHZN
Master LDC
May
20,
2008
Page
2
4. Forbearance.
The
Lender agrees to forbear from exercising any remedies available under the Loan
Documents or applicable law for a period ending on September 29, 2008 (the
“Forbearance Period”), and to waive any registration rights it may have in
connection with the Block II securities (as defined in the Letter Agreement
dated November 28, 2007) issued by the Lender to Borrower. As consideration
for
such forbearance, Borrower hereby consents that the 8,000,000 free-trading
shares presently being held by the Lender as Collateral shall be immediately
released to the Lender and shall be replaced by 8,000,000 restricted shares
of
the Borrower’s common stock. Borrower shall cause to be delivered to the Lender
(i) the sum of $15,000 as a management fee and for legal expenses, and (ii)
all
necessary documentation, including but not limited to, medallion guaranteed
stock powers, opinions of counsel (in connection with the removal of any legends
on securities issued to the Lender or its designees) and/or letters of
instruction directed to the Borrower’s Transfer Agent, in order to accurately
reflect the Lender’s ownership of any securities issued by the Borrower to the
Lender in connection with the Loan Documents, including, but not limited to,
the
correct date of any stock issuance. As additional consideration for such
forbearance, the Borrower releases the Lender from any claim, damage, suit
or
liability arising on or before the date hereof relating to the Loan Documents
or
otherwise.
5. Additional
Documents.
The
Borrower agrees that it will, at the Lender's request, execute such documents
and provide such information as the Lender may deem necessary or desirable
to
confirm the Lender’s interest in the Collateral and the Pledged Securities or to
effect the disposition, collection, or other realization upon the Collateral
and
the Pledged Securities in the event the Lender elects to exercise remedies
following the Forbearance Period.
6. Effectiveness
of Loan Documents.
The
Borrower confirms that the Loan Documents remain in full force and effect in
accordance with their respective terms and that the Lender has not waived its
rights or remedies, whether under the Loan Documents or otherwise, except only
to the extent of the forbearance described herein.
7. Representations
and Warranties.
The
Borrower represents and warrants as follows: (i) the Borrower is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware; (ii) the execution, delivery and performance by the Borrower
of this letter is within the powers of the Borrower, have been duly authorized
by all necessary action, and do not contravene (A) the Borrower’s certificate of
incorporation or by-laws or (B) (x) any law or (y) any agreement or document
binding on or affecting the Borrower, (iii) no authorization or approval or
other action by, and no notice to or filing with, any governmental authority,
regulatory body or third person is required for the due execution, delivery
and
performance by the Borrower of this letter; (iv) this letter constitutes the
legal, valid and binding obligation of the Borrower enforceable against it
in
accordance with its terms except as enforcement hereof may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors’ rights generally and subject to the applicability of general
principles of equity; and (v) there is no pending or, to the knowledge of the
Borrower, threatened action or proceeding affecting the Borrower before any
governmental agency or arbitrator which challenges or relates to this letter
or
which may otherwise have a material adverse effect on the Borrower.
CAMHZN
Master LDC
May
20,
2008
Page
3
8. Miscellaneous.
This
letter shall be governed by and construed in accordance with the laws of the
State of New York without regard to its conflict of laws rules. This letter
may
be amended or modified only by a written instrument signed by the Lender and
the
Borrower. The Lender’s failure at any time to require the performance of any
provision of this letter shall in no manner affect the Lender’s right at a later
time to enforce the same provision. Headings are inserted for convenience of
reference only and shall not effect the interpretation of this letter. This
letter shall be binding upon the Borrower, and its legal representatives,
successors and permitted assigns. In no event may the Borrower assign any rights
or obligations under this letter without the Lender’s prior written consent and
any purported assignment without such consent shall be null and
void.
Very
truly yours,
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Neah
Power Systems, Inc.
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a
Nevada corporation
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By:
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Name:
Xxxxx X’Xxxxx
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Title:
President and CEO
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AGREED:
CAMHZN
Master LDC
By:
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Name:
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Title:
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