EXHIBIT 10.2
SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
AND REORGANIZATION
BY AND AMONG
EQUITEX, INC.,
EI ACQUISITION CORP.,
AND
HYDROGEN POWER, INC.
NOVEMBER 11, 2005
SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AND REORGANIZATION
THIS SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER AND
REORGANIZATION (this "AGREEMENT") is entered into as of November 11, 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 Second Amendment to Agreement and Plan of Merger and
Reorganization dated October 31, 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 February 15, 2005.
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 February 15, 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)."
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.
2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed effective as of the date first written above.
HYDROGEN POWER, INC.: EQUITEX, INC.:
By: /S/ JAMES MATKIN By: /S/ HENRY FONG
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Name: James Matkin Name: Henry Fong
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Title: Chairman Title: President
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EI ACQUISITION CORP.:
By: /S/ HENRY FONG
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Name: Henry Fong
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Title: President
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