FOURTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION BY AND AMONG EQUITEX, INC., EI ACQUISITION CORP., AND HYDROGEN POWER, INC. January 30, 2006
Exhibit
10.8
FOURTH
AMENDMENT TO
AGREEMENT
AND PLAN OF MERGER
AND
REORGANIZATION
BY
AND AMONG
EQUITEX,
INC.,
EI
ACQUISITION CORP.,
AND
HYDROGEN
POWER, INC.
January
30, ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ TO AGREEMENT AND PLAN OF MERGER
AND
REORGANIZATION
This
Fourth Amendment to Agreement and Plan of Merger and Reorganization
(this
“Agreement”)
is
entered into as of January 30, 2006, by and among Hydrogen Power, Inc., a
Delaware corporation (the “Company”),
Equitex, Inc., a Delaware corporation (“Equitex”),
and
EI Acquisition Corp., a Delaware corporation that is wholly owned by Equitex
(the “Merger
Sub”).
INTRODUCTION
A. The
Company, Equitex and Merger Sub have entered into that certain Agreement and
Plan of Merger and Reorganization dated September 13, 2005, as amended in that
certain First Amendment to Agreement and Plan of Merger and Reorganization
dated
October 31, 2005, that certain Second Amendment to Agreement and Plan of Merger
and Reorganization dated November 11, 2005 and that certain Third Amendment
to
Agreement and Plan of Merger and Reorganization dated December 15, 2005 (as
amended, the “Merger Agreement”) whereby the Company and Merger Sub will merge
with the surviving corporation being a subsidiary of Equitex (the “Merger”).
B. The
Company, Equitex and Merger Sub have agreed to amend the Merger Agreement by
entering into this Agreement in order to extend the termination date of the
Merger Agreement to March 1, 2006.
C. The
parties to this Agreement intend to adopt the Merger Agreement, as amended
by
this Agreement, as a plan of reorganization within the meaning of
Section 368(a) of the Internal Revenue Code of 1986, as amended (the
“Code”),
and
the regulations promulgated thereunder, and intend that the Merger and the
transactions contemplated by this Agreement be undertaken pursuant to that
plan.
Accordingly, the parties to the Merger Agreement, as amended by this Agreement,
confirm their intention that the Merger qualify as a “reorganization,” within
the meaning of Code Section 368(a) and a “foreign merger” within the
meaning of Section 87(8.1) of the Income Tax Act (Canada), and that, with
respect to the Merger, Equitex, Merger Sub and the Company will each be a “party
to a reorganization,” within the meaning of Code
Section 368(b).
AGREEMENT
Now,
Therefore,
in
consideration of the foregoing premises, and the representations, warranties
and
covenants contained herein, the parties hereto agree as follows:
Article
1
Amendment
1.1 Amendment
to Termination Date.
In
order to reflect a change in the termination date of the Merger Agreement,
Section 7.1(e) of the Merger Agreement is hereby deleted in its entirety and
replaced with the following:
“(e) by
either
the Company or Equitex if the Effective Date is not on or before March 1, 2006,
or such later date as the Company and Equitex may mutually agree (unless the
failure to consummate the Merger by such date shall be due to the action or
failure to act of the party seeking to terminate this Agreement in breach of
such party’s obligations under this Agreement).”
2
Article
2
General
Provisions
2.1 Merger
Agreement in Full Force and Effect.
The
Merger Agreement shall continue in full force and effect without amendment
except as expressly provided for in this Agreement.
2.2 Interpretation.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
References to Sections and Articles refer to Sections and Articles of this
Agreement unless otherwise stated.
2.3 Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, void or unenforceable, the remainder
of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties shall negotiate in good faith to modify this
Agreement and to preserve each party’s anticipated benefits under this
Agreement.
2.4 Amendment.
This
Agreement may not be amended or modified except by an instrument in writing
approved by the parties to this Agreement and signed on behalf of each of the
parties hereto.
2.5 Miscellaneous.
This
Agreement (together with all other documents and instruments referred to
herein): (a) constitutes the entire agreement, and supersedes all other prior
agreements and undertakings, both written and oral, among the parties, with
respect to the subject matter hereof; and (b) shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and
assigns, but shall not be assignable by either party hereto without the prior
written consent of the other party hereto.
2.6 Counterparts;
Delivery.
This
Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement. In addition, executed
counterparts may be delivered by means of facsimile or other electronic
transmission; and signatures so delivered shall be fully and validly binding
to
the same extent as the delivery of original signatures.
2.7 Governing
Law.
This
Agreement is governed by the internal laws of the State of Delaware without
regard to its conflicts-of-law principles.
[SIGNATURE
PAGE TO FOLLOW.]
3
In
Witness Whereof,
the
parties hereto have caused this Agreement to be executed effective as of the
date first written above.
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HYDROGEN
POWER, INC.:
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇
Title: Chairman
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EQUITEX,
INC.:
By: /s/
▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇
Title: President
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EI
ACQUISITION CORP.:
By: /s/
▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇
Title: President
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