AMENDMENT NO. 6
TO AGREEMENT AND PLAN OF
REORGANIZATION AND MERGER
BY AND AMONG U.S. ENERGY SYSTEMS, INC.,
USE ACQUISITION CORP. AND
XXXXXX ALTERNATIVE POWER CORPORATION
This Amendment No. 6 to Agreement and Plan of Reorganization
and Merger (the "Amendment") is made as of the 1st day of November, 2002 by and
between U.S. Energy Systems, Inc. ("Parent") and), and Xxxxxx Alternative Power
Corporation (the "Surviving Corporation"), as the surviving corporation of the
merger with USE Acquisition Corp.("Merger Sub"). Unless indicated otherwise,
capitalized terms shall have the same meanings herein as they have in the Merger
Agreement (as defined below).
W I T N E S S E T H
WHEREAS, Parent, Merger Sub and the Surviving Corporation
previously entered into that certain Agreement and Plan of Reorganization and
Merger dated as of November 28, 2000 as amended by Amendment No. 1, Amendment
Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0 and Amendment No. 5 (collectively the
"Merger Agreement"); and
WHEREAS, the Parent and the Surviving Corporation now wish to
amend the Agreement.
NOW, THEREFORE, in consideration of $10.00 and other
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Clause (B) of Section 2.01(a) of the Merger Agreement is
hereby amended by deleting the existing clause in its entirety and
inserting in its place the following clause:
(B) a contingent obligation of Merger Sub to pay $800,000 in
cash on the date which is twenty one months after the Effective Date
(the "Contingent Merger Payment") (of which Contingent Merger Payment
62.5% of the payment is guaranteed severally but not jointly by USE and
37.5% of the payment is guaranteed severally but not jointly by CSHC
pursuant to guarantees of USE and CSHC, respectively (the
"Guarantees"), substantially in the form of Exhibits 2.01(a-2) and
2.01(a-3)),
2. Parent and Surviving Corporation hereby waive until
February 11, 2003 compliance with section 2.05(a)(ii) of the Merger
Agreement to the extent of the submission of the response and objection
to the Draft Effective Date Balance Sheet.
3. Except as amended hereby, the Merger Agreement is as hereby
ratified and confirmed and, as so amended, remains in full force and
effect on the date hereof.
IN WITNESS WHEREOF, Parent and the Surviving Corporation have
caused this Agreement to be executed as of the date first written above.
U.S. ENERGY SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title:Chief Executive Officer
U.S. ENERGY BIOGAS CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
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Name:Xxxxx Xxxxxxxxxx
Title: Treasurer
