SHARE EXCHANGE AGREEMENT
EXHIBIT
10.1
This
Share Exchange Agreement (the “Agreement”)
is
entered into as of December 5, 2005, between Equitex, Inc., a Delaware
corporation (“Equitex”),
and
Aton Select Fund
Limited (“Aton”).
INTRODUCTION
A. Hydrogen
Power Inc., a Delaware corporation (“HPI”),
Equitex and EI Acquisition Corp., a Delaware corporation that is wholly owned
by
Equitex (the “Merger
Sub”)
have
entered into an agreement and plan of merger and reorganization dated September
13, 2005 (the “Merger
Agreement”)
whereby HPI and Merger Sub will merge with the surviving corporation being
a
subsidiary of Equitex (the “Merger”).
B. Equitex
and Aton have agreed to the acquisition by Equitex of 850,000 shares of the
common stock of HPI held by Aton in exchange for the issuance to Aton of
700,000
shares of the common stock of Equitex as a transaction to occur in advance
and
as part of the Merger.
C. HPI,
Equitex and Merger Sub have entered into a first amendment to the Merger
Agreement that contemplates the agreement of the parties to the completion
of
the share exchange on the terms and subject to the conditions of this Agreement
(the “First
Amendment Agreement”).
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.
DEFINITIONS
1.1 Definitions.
The
following terms will have the following meanings for all purposes of this
Agreement.
(a) “Agreement”
shall mean this Agreement, and all the exhibits, schedules and other documents
attached to or referred to in the Agreement, and all amendments and supplements,
if any, to this Agreement.
(b) “Aton”
shall mean Aton Select Fund Limited.
(c) “Closing”
shall mean the closing of the Transaction at which the Closing Documents
shall
be exchanged by the parties, except for those documents or other items
specifically required to be exchanged at a later time.
(d) “Closing
Documents” shall mean the papers, instruments and documents required to be
executed and delivered at the Closing pursuant to this Agreement.
(e) “Equitex
Shares” means those 700,000 shares of common stock of Equitex to be issued by
Equitex to Aton in exchange for the HPI Shares pursuant to this
Agreement.
(f) “Exchange
Act” shall mean the United States Securities Exchange Act of 1934, as
amended.
(g) “HPI
Shares” means those 850,000 shares of Common Stock of HPI to be acquired by
Equitex from Aton pursuant to this Agreement.
(h) “SEC”
shall mean the United States Securities and Exchange Commission.
(i) “Securities
Act” shall mean the United States Securities Act of 1933, as
amended.
(j) “Transaction”
shall mean the acquisition by Equitex of the HPI Shares from Aton in exchange
for the issuance of the Equitex Shares by Equitex to Aton.
1.2 Schedules.
The
following appendices and schedules are attached to and form part of this
Agreement:
Schedule
A Definition
of U.S. Person
Schedule
B Investment
Agreement of Non-U.S. Person
1.3 Currency.
All
dollar amounts referred to in this agreement are in United States funds,
unless
expressly stated otherwise.
ARTICLE
2.
ACQUISITION
AND SALE OF SHARES
2.1 Acquisition
and Sale of Shares.
Subject
to the terms and conditions of this Agreement, Aton hereby covenants and
agrees
to sell, assign and transfer to Equitex, and Equitex hereby covenants and
agrees
to acquire from Aton on the Closing Date (as defined in Section 7.1),
the
HPI Shares held by Aton.
2.2 Consideration.
As
consideration for acquisition of the HPI Shares, Equitex shall issue the
Equitex
Shares to Aton on the basis of 0.823529 Equitex Shares for each one share
of HPI
transferred by Aton to Equitex. Aton acknowledges and agrees that the Equitex
Shares will be issued pursuant to available exemptions from the prospectus
and
registration requirements of the Securities Act and accordingly will be
“restricted securities”, as defined in Rule 144 the Securities Act. Aton agrees
to abide by all applicable resale restrictions and hold periods imposed by
all
applicable securities legislation.
Aton
acknowledges and agrees that the Equitex Shares will be endorsed with a legend
as required by Regulation S substantially as follows:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933 (THE “ACT”), AND HAVE BEEN ISSUED IN RELIANCE UPON
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE ACT. SUCH SECURITIES
MAY
NOT BE REOFFERED FOR SALE OR RESOLD OR OTHERWISE TRANSFERRED UNLESS THEY
ARE
REGISTERED UNDER THE APPLICABLE PROVISIONS OF THE ACT OR ARE EXEMPT FROM
SUCH
REGISTRATION. HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE ACT.
2.3 Exchange
of Warrants.
Notwithstanding their terms, all outstanding warrants to purchase shares
of
HPI’s common stock held by Aton, as listed in Disclosure Schedule 2.3 to the
Merger Agreement (the “HPI Warrants”), shall on closing of the Merger pursuant
to the Merger Agreement, as amended, be exchanged for warrants to purchase
an
equivalent number of shares of Equitex Common Stock, without adjustment,
at an
exercise price of $3.00 per share (the “Equitex Warrants”) for the unexpired
term of the original HPI Warrants, as contemplated by the First Amendment
Agreement.
ARTICLE
3.
REPRESENTATIONS
AND WARRANTIES OF EQUITEX
Equitex
represents and warrants to Aton and acknowledges that Aton is relying upon
such
representations and warranties, in connection with the execution, delivery
and
performance of this Agreement, notwithstanding any investigation made by
or on
behalf of Aton, that on the date hereof and the Closing Date:
3.1 Organization
and Qualification.
Equitex
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Delaware, and has the requisite corporate power to carry
on
its business as now conducted. Equitex is licensed or qualified to do business
in every jurisdiction in which the nature of its business or its ownership
of
property requires it to be licensed or qualified, except where the failure
to be
so licensed or qualified would not have a Material Adverse Effect on Equitex
given its current business operations. For
all
purposes of this Agreement, the term “Material Adverse Effect” shall, with
respect to an entity, mean a material adverse effect on the business,
operations, results of operations or financial condition of such entity on
a
consolidated basis.
3.2 Authority
Relative to this Agreement; Non-Contravention.
Equitex
has the requisite corporate power and authority to enter into this Agreement
and
to carry out its obligations hereunder. The execution and delivery of this
Agreement by Equitex and the consummation by Equitex of the transactions
contemplated hereby have been duly authorized by Equitex’s board of directors
and no other corporate proceedings on the part of Equitex are necessary to
authorize the execution and delivery of this Agreement and the consummation
of
the transactions contemplated hereby. This Agreement has been duly executed
and
delivered by Equitex and, assuming it is a valid and binding obligation of
Equitex, constitutes a valid and binding obligation of Equitex enforceable
in
accordance with its terms, except as enforcement may be limited by general
principles of equity whether applied in a court of law or a court of equity
and
by bankruptcy, insolvency and similar laws affecting creditors’ rights and
remedies generally.
3.3 Merger
Agreement.
Each of
the representations and warranties of Equitex and Equitex Sub set forth in
the
Merger Agreement are true and correct as of the date hereof and the Closing
Date.
3.4 No
Material Adverse Effect.
From
the date of this Agreement to the Closing Date, there has not been any “Material
Adverse Effect”, as such term is defined in the Merger Agreement, relating to
Equitex.
3.5 Validity
of the Equitex Capital Stock.
The
Equitex Shares to be issued to Aton pursuant to this Agreement will be, when
issued, duly authorized, validly issued, fully paid and non-assessable shares
in
the capital of Equitex.
ARTICLE
4.
COVENANTS,
REPRESENTATIONS AND WARRANTIES
OF
ATON
Aton
represents and warrants to Equitex as follows, and acknowledges that Equitex
is
relying upon such covenants, representations and warranties in connection
with
the sale of the Equitex Shares to Aton, that as of the date hereof and the
Closing Date:
4.1 Aton
is
the beneficial and legal owner of the HPI Shares free and clear of all liens,
encumbrances and claims of every kind, and the delivery of such HPI Shares
by
Aton to Equitex pursuant to this Agreement will transfer to Equitex valid
title
to such HPI Shares, free and clear of all liens, charges, encumbrances and
claims of every kind, specifically including but not limited to any third-party
rights to purchase any of such HPI Shares. There are no actions, suits or
proceedings against Aton affecting its title to the HPI Shares or the right
of
Aton to execute, deliver and perform this Agreement and the transactions
contemplated hereby.
4.2 Aton
has
such knowledge and experience in finance, securities, investments, including
investment in non-listed and non registered securities, and other business
matters so as to be able to evaluate the merits and risks of an investment
in
Equitex’s common stock and to otherwise protect its interests in connection with
this transaction.
4.3 Equitex
has provided to Aton the opportunity to ask questions and receive answers
concerning the terms and conditions of the offering and it has had access
to
such information concerning Equitex as it has considered necessary or
appropriate in connection with its investment decision to acquire the Equitex
Shares.
4.4 Aton
is
acquiring the Equitex Shares for its own account, for investment purposes
only
and not with a view to any resale, distribution or other disposition of the
Equitex Shares in violation of the United States securities laws.
4.5 Aton
understands the Equitex Shares have not been and will not be registered,
except
as set forth herein, under the 1933 Act or the securities laws of any state
of
the United States and that the sale contemplated hereby is being made in
reliance on an exemption from such registration requirements.
4.6 Aton
has
not purchased the Equitex Shares as a result of any form of general solicitation
or general advertising, including advertisements, articles, notices or other
communications published in any newspaper, magazine or similar media or
broadcast over radio, television or other form of telecommunications, or
any
seminar or meeting whose attendees have been invited by general solicitation
or
general advertising.
4.7 Aton
understands that the Equitex Shares are “restricted securities” under applicable
federal securities laws and that the 1933 Act and the rules of the SEC provide
in substance that Aton may dispose of the Equitex Shares only pursuant to
an
effective registration statement under the 1933 Act or an exemption therefrom.
4.8 Aton
acknowledges and agrees that all certificates representing the Equitex Shares
will be endorsed with the legend required by Section 2.2
of this
Agreement.
4.9 If
Aton
decides to offer, sell or otherwise transfer any of the Equitex Shares, it
will
not offer, sell or otherwise transfer any of such Equitex Shares directly
or
indirectly, unless:
(a) the
sale
of the Equitex Shares has been registered by an effective registration statement
filed with the SEC;
(b) the
sale
is to Equitex;
(c) the
sale
is made outside the United States in a transaction meeting the requirements
of
Rule 903 or Rule 904 of Regulation S under the 1933 Act and in compliance
with
applicable local laws and regulations;
(d) the
sale
is made pursuant to the exemption from the registration requirements under
the
1933 Act provided by Rule 144 thereunder and in accordance with any applicable
state securities or “blue sky” laws; or
(e) the
Equitex Shares are sold in a transaction that does not require registration
under the 1933 Act or any applicable state laws and regulations governing
the
offer and sale of securities,
and,
in
the cased of (b), (c) and (d), it has prior to such sale furnished to Equitex
an
opinion of counsel reasonably satisfactory to Equitex.
4.10 Aton
further represents, warrants and agrees that:
(a) Aton
was
not in the United States at the time the offer to purchase the Equitex Shares
was received or this Agreement was executed.
(b) Aton
agrees not to engage in hedging transactions with regard to the Equitex Shares
unless in compliance with the Securities Act.
(c) Aton
agrees that Equitex will refuse to register any transfer of the Equitex Shares
not made in accordance with the provisions of Regulation S of the Securities
Act, pursuant to registration under the Securities Act, pursuant to an available
exemption from registration.
(d) Aton
agrees to resell the Equitex Shares only in accordance with the provisions
of
Regulation S of the Securities Act, pursuant to registration under the
Securities Act, or pursuant to an available exemption from registration pursuant
to the Securities Act.
(e) Aton
represents and warrants that Aton is not a “U.S. Person” as defined by
Regulation S of the Securities Act, as set forth in Schedule A hereto, and
is
not acquiring the Equitex Shares for the account or benefit of a U.S.
Person.
ARTICLE
5.
ADDITIONAL
COVENANTS AND AGREEMENTS
5.1 Registration
Rights.
Equitex
agrees to use its best efforts to prepare and file with the SEC, as early
as
possible following Closing, and in no event later than thirty (30) days
following Closing, a registration statement under the Securities Act covering
the resale of Equitex Shares issued to Aton on Closing. Equitex will use
its
best efforts to obtain the effectiveness of such registration statement(s)
as
soon as practicable, and once effective, to maintain such effectiveness for
a
period of at least two years from the date such Equitex Shares were issued.
Equitex’s obligation to obtain and maintain such effectiveness is conditioned
upon the cooperation of Aton in furnishing information to Equitex relating
to
such holders’ method of distribution and other information requested by Equitex.
Any and all expenses incurred in connection with such registration shall
be
borne by Equitex. Any and all selling expenses incurred by Aton shall be
borne
by Aton.
ARTICLE
6.
CLOSING
CONDITIONS
6.1 Conditions
Precedent to Closing by Aton.
The
obligation of Aton to purchase the Equitex Shares and consummate the Transaction
is subject to the satisfaction of the conditions set forth below, unless
any
such condition is waived by Aton at the Closing. The Closing of the Transaction
will be deemed to mean a waiver of all conditions to the Closing.
(a) Representations
and Warranties.
The
representations and warranties of Equitex set forth in this Agreement will
be
true, correct and complete in all respects as of the Closing, as though made
on
and as of the Closing.
(b) Performance.
All of
the covenants and obligations that Equitex is required to perform or to comply
with pursuant to this Agreement at or prior to the Closing must have been
performed and complied with in all material respects.
(c) Closing
Documents.
This
Agreement and all Closing Documents to be executed by Equitex, as necessary
or
reasonably required to consummate the Transaction, will have been executed
and
delivered to Aton.
(d) No
Material Adverse Change.
No
Material Adverse Effect relating to Equitex will have occurred since the
date of
this Agreement.
(e) Compliance
with Nasdaq Marketplace Rules.
HPI and
Equitex are reasonably satisfied that the Agreement and the transactions
contemplated hereby will not violate any Nasdaq Marketplace Rule, including
without limitation Nasdaq Marketplace Rule 4350(i)(1)(C).
6.2 Conditions
Precedent to Closing by Equitex.
The
obligation of Equitex to sell and issue the Equitex Shares and to consummate
the
Transaction is subject to the satisfaction of the conditions set forth below,
unless such condition is waived by Equitex at the Closing. The Closing of
the
Transaction will be deemed to mean a waiver of all conditions to
Closing.
(a) Representations
and Warranties.
The
representations and warranties of Aton set forth in this Agreement will be
true,
correct and complete in all respects as of the Closing, as though made on
and as
of the Closing.
(b) Performance.
All of
the covenants and obligations that Aton is required to perform or to comply
with
pursuant to this Agreement at or prior to the Closing must have been performed
and complied with in all material respects.
(c) Closing
Documents.
This
Agreement and all Closing Documents to be executed by Aton, as necessary
or
reasonably required to consummate the Transaction, will have been executed
and
delivered by Aton.
(d) Compliance
with Nasdaq Marketplace Rules.
HPI and
Equitex are reasonably satisfied that the Agreement and the transactions
contemplated hereby will not violate any Nasdaq Marketplace Rule, including
without limitation Nasdaq Marketplace Rule 4350(i)(1)(C).
ARTICLE
7.
CLOSING
7.1 Closing.
The
Closing will take place, subject to the terms and conditions of this Agreement,
forthwith upon the execution and mutual release of all Closing Deliveries
set
forth in Sections 7.2
and
7.3
hereof,
at a mutually agreeable date and time, but in no event later than December
5,
2005. The date of the Closing shall constitute the Closing Date. Each party
agrees that the Closing may completed by the exchange of undertakings between
the respective legal counsel for Aton and Equitex, provided such undertakings
are satisfactory to each party’s respective legal counsel.
7.2 Closing
Deliveries of Equitex.
At
Closing, Equitex will deliver or cause to be delivered the following, fully
executed and in form and substance reasonably satisfactory to Aton:
(a) copies
of
all resolutions and/or consent actions adopted by or on behalf of the boards
of
directors of Equitex evidencing approval of this Agreement and approving
the
issuance of the Equitex Shares to Aton;
(b) a
certificate of an officer of Equitex, dated as of Closing, certifying that
(i)
each covenant and obligation of Equitex has been complied with; (ii) each
representation, warranty and covenant of Equitex is true and correct at the
Closing as if made on and as of the Closing; and (iii) there has been no
Company
Material Adverse Effect since the date of this Agreement;
(c) certificates
representing the Equitex Shares endorsed with the legends contemplated by
this
Agreement and in the name of Aton in accordance with this
Agreement.
7.3 Closing
Deliveries of Aton.
At
Closing, Aton will deliver or cause to be delivered to Equitex the following,
fully executed and in form and substance reasonably satisfactory to
Equitex:
(a) an
investment agreement in the form attached hereto as Exhibit B (the “Non-U.S.
Stockholder Questionnaire”); and
(b) certificates
representing the HPI Shares duly executed and endorsed for transfer blank
or
accompanied by duly executed stock powers duly endorsed in blank, in each
case
in proper form for transfer.
ARTICLE
8.
INDEMNIFICATION;
REMEDIES; SURVIVAL
8.1 Certain
Definitions.
For the
purposes of this Article
8,
the
terms “Loss” and “Losses” means any and all demands, claims, actions or causes
of action, assessments, losses, damages. liabilities, costs, and expenses,
including without limitation, interest, penalties, fines and reasonable
attorneys, accountants and other professional fees and expenses, but excluding
any indirect, consequential or punitive damages suffered by Equitex or Aton
including damages for lost profits or lost business opportunities.
8.2 Agreement
of Aton to Indemnify.
Subject
to the terms and conditions of Section 8.4,
Aton
will indemnify, defend, and hold harmless Equitex, its respective officers,
directors, shareholders, employees and affiliates from, against, and in respect
of any and all Losses asserted against, relating to, imposed upon, or incurred
by Equitex by reason of, resulting from, based upon or arising out
of:
(a) the
breach by Aton of any representation or warranty of Aton contained in or
made
pursuant to this Agreement, any Closing Document or certificate or instrument
delivered pursuant to this Agreement; and
(b) the
breach or partial breach by Aton of any covenant or agreement of Aton made
in or
pursuant to this Agreement, or any Closing Document or other certificate
or
instrument delivered pursuant to this Agreement.
8.3 Agreement
of Equitex to Indemnify.
Subject
to the terms and conditions of Section 8.4,
Equitex
will indemnify, defend, and hold harmless Aton from, against, for, and in
respect of any and all Losses asserted against, relating to, imposed upon,
or
incurred by Aton by reason of, resulting from, based upon or arising out
of:
(a) the
breach by Equitex of any representation or warranty of Equitex contained
in or
made pursuant to this Agreement, any Closing Document or certificate or
instrument delivered pursuant to this Agreement; and
(b) the
breach or partial breach by Equitex of any covenant or agreement of Equitex
made
in or pursuant to this Agreement, or any Closing Document or other certificate
or instrument delivered pursuant to this Agreement.
8.4 Limitations
of Liability.
(a) No
claims
for indemnification under Section 8.2
may be
made by Equitex after the first anniversary of the Closing. No claims for
indemnification under Section 8.3
by an
Equitex Shareholder will be made after the first anniversary of the
Closing.
(b) Aton
will
not be liable to Equitex for any amount exceeding the aggregate of (i) the
net
proceeds realized by Aton from the sale of the Equitex Shares to the date
of
indemnification, and (ii) the value of any unsold Equitex Shares held by
Aton as
of the date of indemnification. Equitex will not be liable to Aton for any
amount exceeding the fair market value of the portion of HPI Shares acquired
from Aton pursuant to this Agreement. For purposes of this Section 8.4,
the
“fair market value” of the HPI Shares shall be equal to the price per share of
the common stock of HPI most recently sold by HPI to a third party in an
arms-length transaction. Notwithstanding the foregoing, if such shares are
listed on a U.S. securities exchange or are quoted on the Nasdaq National
Market
or Nasdaq Small-Cap Market (“Nasdaq”), then the fair market value shall be
determined by reference to the last sale price of a share of HPI common stock
on
such U.S. securities exchange or Nasdaq on the applicable date of such sale.
If
such U.S. securities exchange or Nasdaq is closed for trading on such date,
or
if the Common Stock does not trade on such date for any other reason, then
the
last sale price used shall be the one on the date the Common Stock last traded
on such U.S. securities exchange or Nasdaq prior to such sale.
ARTICLE
9.
MISCELLANEOUS
PROVISIONS
9.1 Effectiveness
of Representations; Survival.
Each
party is entitled to rely on the representations, warranties and agreements
of
each of the other parties and all such representations, warranties and
agreements will be effective regardless of any investigation that any party
has
undertaken or failed to undertake. The representations, warranties and
agreements will survive the Closing and continue in full force and effect
until
the first anniversary of the Closing.
9.2 Further
Assurances.
Each of
the parties hereto will cooperate with the others and execute and deliver
to the
other parties hereto such other instruments and documents and take such other
actions as may be reasonably requested from time to time by any other party
hereto as necessary to carry out, evidence, and confirm the intended purposes
of
this Agreement.
9.3 Amendment.
This
Agreement may not be amended except by an instrument in writing signed by
each
of the parties.
9.4 Expenses.
Each
party to this Agreement will bear its respective expenses incurred in connection
with the preparation, execution, and performance of this Agreement and the
transactions contemplated hereby, including all fees and expenses of agents,
representatives, counsel, and accountants.
9.5 Entire
Agreement.
This
Agreement, the exhibits, schedules attached hereto and the other Closing
Documents contain the entire agreement between the parties with respect to
the
subject matter hereof and supersede all prior arrangements and understandings,
both written and oral, expressed or implied, with respect thereto. Any preceding
correspondence or offers are expressly superseded and terminated by this
Agreement.
9.6 Severability.
It is
the desire and intent of the parties that the provisions of the Closing
Documents be enforced to the fullest extent permissible under the law and
public
policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any provision of the Closing Documents will for any reason
be
held or adjudged to be invalid, illegal, or unenforceable by any court of
competent jurisdiction, such paragraph or part thereof so adjudicated invalid,
illegal, or unenforceable will be deemed separate, distinct, and independent,
and the remainder of the Closing Documents will remain in full force and
effect
and will not be affected by such holding or adjudication.
9.7 Notices.
All
notices and other communications required or permitted under to this Agreement
must be in writing and will be deemed given if sent by personal delivery,
faxed
with electronic confirmation of delivery, internationally-recognized express
courier or registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other address
for
a party as will be specified by like notice):
If
to Aton:
|
c/o
Hydrogen Power Inc.
0000
Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Attn:
Xxxxx Xxxxxx, Chairman
|
With
copies to:
|
Lang
Xxxxxxxx LLP
0000
Xxxxx Xxxxxx, X.X. Xxx 00000
0000
Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx
X0X
0X0
Facsimile:
000-000-0000
Attn:
Xxxxxxx Xxxxxx
|
If
to Equitex or Merger Sub:
|
Equitex,
Inc.
0000
Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Facsimile:
Attn:
Xxxxx Xxxx, President
|
With
copies to:
|
Xxxxxx
Xxxxxxx Xxxxxx & Brand, LLP
00
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Attn:
Xxxxxxx X. Xxxxx
|
All
such
notices and other communications will be deemed to have been received (a)
in the
case of personal delivery, on the date of such delivery, (b) in the case
of a
fax, when the party sending such fax has received electronic confirmation
of its
delivery, (c) in the case of delivery by internationally-recognized express
courier, on the business day following dispatch and (d) in the case of mailing,
on the fifth business day following mailing.
9.8 Headings.
The
headings contained in this Agreement are for convenience purposes only and
will
not affect in any way the meaning or interpretation of this
Agree-ment.
9.9 Benefits.
This
Agreement is and will only be construed as for the benefit of or enforceable
by
those persons party to this Agreement.
9.10 Assignment.
This
Agreement may not be assigned (except by operation of law) by any party without
the consent of the other parties.
9.11 Construction.
The
language used in this Agreement will be deemed to be the language chosen
by the
parties to express their mutual intent, and no rule of strict construction
will
be applied against any party.
9.12 Counterparts.
This
Agreement may be executed in one or more counterparts, all of which will
be
considered one and the same agreement and will become effective when one
or more
counterparts have been signed by each of the parties and delivered to the
other
parties, it being understood that all parties need not sign the same
counterpart.
9.13 Fax
Execution.
This
Agreement may be executed by delivery of executed signature pages by fax
and
such fax execution will be effective for all purposes.
9.14 Schedules
and Exhibits.
The
schedules and exhibits are attached to this Agreement and incorporated
herein.
9.15 Governing
Law.
This
Agreement is governed by the internal laws of the State of Delaware without
regard to its conflicts-of-law principles.
In
Witness Whereof, the parties hereto have caused this Agreement to be executed
effective as of the date first written above.
EQUITEX, INC. | ATON SELECT FUND LIMITED | ||||
By: | /s/ Xxxxx Xxxx | By: | /s/ Dr. iur. Xxxxxx Xxxxxxx | ||
Name: Xxxxx Xxxx |
Name: Dr. iur. Xxxxxx Xxxxxxx |
||||
Title: President and CEO | Title: Director |