THIRD AMENDMENT TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION BY AND AMONG EQUITEX, INC., EI ACQUISITION CORP., AND HYDROGEN POWER, INC. December 15, 2005
Exhibit
10.7
THIRD
AMENDMENT TO
AGREEMENT
AND PLAN OF MERGER
AND
REORGANIZATION
BY
AND AMONG
EQUITEX,
INC.,
EI
ACQUISITION CORP.,
AND
HYDROGEN
POWER, INC.
December
15, 2005
THIRD
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AND
REORGANIZATION
This
Third Amendment to Agreement and Plan of Merger and Reorganization
(this
“Agreement”)
is
entered into as of December 15, 2005, 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 and that certain Second Amendment to Agreement and Plan
of
Merger and Reorganization Dated November 11, 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 reflect an agreement between the
parties relating to certain obligations of Equitex under the Merger Agreement.
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 Equitex Covenants Relating to Monetization of FastFunds.
In order to reflect a change in Equitex’s obligations relating to the
monetization of FastFunds Financial Corporation, Section 5.12 of the Merger
Agreement is hereby deleted in its entirety and replaced with the
following:
“On
or
after date hereof, Equitex shall commence to monetize its holdings of the
capital stock of FastFunds Financial Corporation, a Nevada corporation, in
accordance with applicable law. Equitex agrees that it shall use the first
$10,000,000 of the net proceeds from such monetization toward the exploitation
and commercialization of the Company Intellectual Property, $5,000,000 of
which
shall be provided to the Company within 45 days of the Closing; provided
that,
to the
extent such monetization of FastFunds Financial Corporation does not occur
within 45 days of the Closing, Equitex shall have the option, at its sole
discretion, to provide to the Company such $5,000,000 from other sources.
Any
funds in excess of $10,000,000 (or $5,000,000 if $5,000,000 is received from
other sources as specified in the preceding sentence) received by Equitex
from
such monetization may be used by Equitex in its sole discretion.”
1
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
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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