Exhibit
1

    
       

      EXECUTION
VERSION

      


      AMENDMENT

      TO

      SECURITIES
PURCHASE AGREEMENT

      


                 This
AMENDMENT TO SECURITIES PURCHASE AGREEMENT, dated as of June 8, 2009 (this
"Amendment"),
is entered into by and among (i) Neah Power Systems, Inc., a
Nevada corporation (the “Company”),
(ii) Agile Opportunity Fund,
LLC, a Delaware limited liability company (“Agile”),
and (iii) Capitoline Advisors
Inc., a New York corporation (“Capitoline”;
together with Agile, the “Investors”,
each an “Investor”).  Capitalized
terms used but not otherwise defined herein shall have the meanings set forth in
the SPA (as defined below).

      


      WITNESSETH:

      


      WHEREAS, the Company and the
Investors entered into a Securities Purchase Agreement, dated as February 12,
2009 (the “SPA”),
pursuant to which, among other things, Agile has prior to the date hereof
purchased from the Company Original Issue Discount Secured Promissory Notes in
the aggregate face amount of $525,000 (the “Original
Notes”) purchasing the maximum amount of Notes contemplated to be
purchased by Agile under the SPA; and

      


      WHEREAS, in connection with
the SPA, the Company executed a Security Agreement in favor of the Investors
(the “Security
Agreement”) granting the Investors a first priority security interest in
the Collateral (as defined therein) to secure the Obligations (as defined
therein); and

      


      WHEREAS, in connection with
the Security Agreement, the Company executed a Patent Security Agreement in
favor of the Investors (the “Patent
Security Agreement”) granting the Investors a continuing security
interest in the Patent Collateral (as defined therein); and

      


      WHEREAS, the SPA contemplated
that at the Additional Closing, among other things, Capitoline would purchase up
to a face amount of $525,000 of Additional Notes, which Additional Closing which
was to have occurred not later than February 27, 2009; and

      


      WHEREAS, Capitoline desires to
transfer to Agile, and Agile agrees to accept from Capitoline, the right to
purchase a face amount of $110,000 of Additional Notes that were to have been
purchased by Capitoline, and the Company agrees thereto; and

      


      WHEREAS, the Company and the
Investors agree to proceed with an Additional Closing notwithstanding the
current date.

      


      NOW, THEREFORE, in
consideration of the foregoing and the mutual promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the Parties, the Parties covenant and agree as
follows:

       

      
        
           

        

        
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      1.
Transfer of Right to
Purchase and Issuance of Additional Note.

       

      (a)           Capitoline
hereby transfers to Agile, and Agile agrees to accept from Capitoline, the right
to purchase a face amount of $110,000 of Additional Notes that were to have been
purchased by Capitoline under the SPA, together with all rights in connection
therewith under the SPA and under all documents executed in connection with the
SPA (the “Original
Transaction Documents”), and the Company agrees thereto.

       

      (b)           Further
to the foregoing, subject to the terms and conditions of this Amendment and in
reliance on the representations and warranties set forth or referred to herein,
at the Closing (as hereinafter defined), the Company shall sell to Agile and
Agile shall purchase from the Company an Additional Note (the “New
Additional Note”) in the face amount of $110,000 for a purchase price of
$100,000 (the “Purchase
Price”).

      


      (c)           The
closing of the purchase, sale and issuance of the New Additional Note shall take
place at the offices of Westerman Ball Ederer Miller & Sharfstein, LLP
(“WBEMS”),
170 Old Country Road, Fourth Floor, Mineola, New York 11501, or at such other
location as agreed to between the parties, simultaneous with the execution
hereof (the "Closing").  At
the Closing:

      


      (i) the
Company shall deliver to Agile the duly executed New Additional Note and all
other securities that may deliverable in connection therewith as contemplated by
the Original Transaction Documents (collectively, the “Securities”)
against delivery by Agile to the Company of the Purchase Price therefor (less
all fees and expenses provided for hereafter) by wire transfer of the amount
thereof to the Company’s account or by such other method agreed to between the
parties; and

      


      (ii) the
Company shall pay all fees due to third party agents and expenses incurred by
Agile and/or Agile Investments, LLC in connection with the transactions
hereunder, including, without limitation, (x) the legal fees and expenses of
WBEMS incurred in connection with the preparation of this Amendment and the
consummation of the transactions contemplated hereby, which legal fees are
agreed to be $1,500.00, and (y) $5,500.00 payable to Agile Investments, LLC for
due diligence, structuring and monitoring fees.

       

      2.           Confirmation
Regarding Security Agreement and Patent Security Agreement.

       

      (a)           For
the purpose of clarification, the parties confirm that the definition of the
term “Obligations” under the Security Agreement is deemed to include
collectively all obligations of the Company to the Investors Party under all of
the Notes, including, without limitation, the New Additional Note and all
Additional Notes issued from time to time under the SPA, whether now existing or
hereafter arising and whether for principal, interest, costs, fees or otherwise
(collectively, the “Obligations”),
and the continuing security interest granted under Patent Security Agreement
shall likewise extend to all such Notes, and the reference in Section 20 of the
Security Agreement includes and extends to all Notes, including, without
limitation, the New Additional Note.

       

      
        
           

        

        
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      3.           Representations
and Warranties of the Company.  The Company hereby represents
and warrants to Agile that the representations and warranties made by the
Company to Agile in the SPA are true and correct as of the date hereof as if
made on and as of the date hereof and with respect to this Amendment and the New
Additional Note, except that representations with respect to the capitalization
of the Company are subject to the issuance of securities pursuant to the
Original Transaction Documents.

      
 

      4.           Representations
and Warranties of Agile.  Agile hereby
represents and warrants to the Company that:

       

      4.1           Accredited
Investor.  Agile is (i) an
“accredited investor” as that term is defined in Rule 501 of the General Rules
and Regulations under the Securities Act, (ii) experienced in making investments
of the kind described in this Amendment and the related documents, (iii) able,
by reason of the business and financial experience of its officers (if an
entity) and professional advisors (who are not affiliated with or compensated in
any way by the Company or any of its Affiliates or selling agents), to protect
its own interests in connection with the transactions described in this
Amendment, and the related documents, and to evaluate the merits and risks of an
investment in the Securities, and (iv) able to afford the entire loss of its
investment in the Securities.

       

      4.2           Restricted
Securities.  Agile understands
that the Securities (unless specifically delivered as “freely tradable”) are
“restricted securities” under applicable U.S. federal and state securities laws
and that, pursuant to these laws, Agile must hold them indefinitely unless they
are registered with the Securities and Exchange Commission and qualified by
state authorities, or an exemption from such registration and qualification
requirements is available.

       

      5.           Original
Transaction Documents in Effect.  Except as specifically
amended hereby, all of the terms and provisions of the Original Transaction
Documenters shall remain and continue in full force and effect.

       

      6.           Miscellaneous

       

      6.1           Successors
and Assigns.  The terms and conditions of this Amendment shall
inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties.  Nothing in this Amendment, express
or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and assigns any rights, remedies, obligations,
or liabilities under or by reason of this Amendment, except as may be
expressly provided herein.

       

      


      6.2           Governing
Law.  This Amendment and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of New York,
without giving effect to principles of conflicts of law.  Each of the
parties hereto submits to the personal jurisdiction of and each agrees that all
proceedings relating hereto shall be brought in federal or state courts located
within Nassau or Suffolk Counties in the State of New York.

       

      
        
           

        

        
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      6.3           Counterparts.  This
Amendment may be executed in any number of counterparts, each of which shall be
deemed an original and all of which together shall constitute one
instrument.

       

       [Remainder
of Page Intentionally Left Blank; Signature Page Follows]

       

      
        
           

        

        
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                 IN WITNESS WHEREOF, each of
the undersigned has caused this Amendment to Securities Purchase Agreement to be
executed by their respective duly authorized officer as of the date first above
written.

      


      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              
                                                                
                                                                  
                                                                    
                                                                      
                                                                        
                                                                          
                                                                            
                                                                              
                                                                                
                                                                                  
                                                                                    
                                                                                      
                                                                                        	 	NEAH
      POWER SYSTEMS, INC.	 
	 	 	 	 
	
                                                                                                 

                                                                                              	
                                                                                                By:
      

                                                                                              	/s/ Chris
      D’Couto	 
	 	 	Name:  Chris
      D’Couto	 
	 	 	Title:    CEO	 
	 	 	 	 
	 	Address:	 
	 	22122
      20th
      Avenue SE, Suite 142	 
	 	Bothell,
      WA 98021	 
	 	 	 	 
	 	 	 	 
	 	AGILE
      OPPORTUNITY FUND, LLC	 
	 	By:
      AGILE INVESTMENTS, LLC, Managing Member	 
	 	 	 	 
	 	By:	/s/
      David I. Propis	 
	 	 	Name:
      David I. Propis	 
	 	 	Title:  Managing
      Member	 
	 	 	 	 
	 	Address:	 
	 	1175
      Walt Whitman Road, Suite 100A	 
	 	Melville,
      NY 11747	 
	 	 	 	 
	 	 	 	 
	 	CAPITOLINE
      ADVISORS INC.	 
	 	 	 	 
	 	By:	/s/
      Robert Roever	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	Address:	 
	 	570
      Lexington Ave., 22nd Floor	 
	 	New
      York, NY 10022	 


                                                                                      

                                                                                    

                                                                                     

                                                                                    
                                                                                      
                                                                                         

                                                                                      

                                                                                      
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