FIRST AMENDMENT TO THE SUBLICENSE AGREEMENT AND CONSENT
EXHIBIT
10.53
FIRST
AMENDMENT TO THE SUBLICENSE AGREEMENT AND CONSENT
THIS
FIRST AMENDMENT TO TH SUBLICENSE AGREEMENT AND CONSENT (the "First Amendment"),
dated as of Mar
7,
2006,
is between Global Hydrofuel Technologies Inc., a Canadian
federal corporation ("GHTI anada"), Hydrogen Power Inc., a Delaware corporation
("HPI") and the University of British Columbia, a corporation continued under
the University Act of British Columbia ("UBC").
BACKGROUND
| A. |
UBC
and GHTI Canada entered into a License Agreement, effective February
3,
2003 (the "Principal License"), pursuant to which UBC granted GHTI
Canada
exclusive, worldwide, sublicenseable rights for and relating to the
commercial development, use and sale of certain inventions pertaining
to
methods of generating hydrogen from water (the "Technology"), in
accordance with the terms and conditions of the Principal
License.
|
| B. |
UBC,
GHTI Canada and HPI entered into a certain Sublicense Agreement and
Consent, effective March
15, 2004 (the "Sublicense"), pursuant to which UBC provided its consent
and GHTI granted to HPI the: (a) exclusive rights for and relating
to the
use, market and distribute the Technology
in the United States, Mexico, Central and South America; and (b)
non-exclusive rights
to market and distribute products in
Canada.
|
| C. |
HPI
entered into a Merger Agreement dated September 13, 2005 (the "Merger
Agreement") with Equitex, Inc. ("Equitex") and El Acquisition Corp.
("El"), a wholly owned subsidiary of Equitex, pursuant to which the
parties to the Merger Agreement have agreed that El shall merge with
and
into
HPI and HPI will become a wholly owned subsidiary of
Equitex.
|
| D. |
HPI
desires that, in the event of any termination of the Principal License,
other than a termination that
arises as a result of a breach of the Sublicense by HPI, that HPI
will
have the exclusive right to
retain its rights with respect to the Technology under the
Sublicense.
|
THEREFORE,
in view of the foregoing, the parties agree as follows:
| 1. |
This
First Amendment shall be effective on the Closing Date of the Merger
Agreement, provided such
Closing Date occurs within one hundred eighty (180) calendar days
of the
date hereof (the "Effective Date"). In the event that the Closing
Date
does not occur within one hundred eighty (180) calendar days of the
date
of this Agreement, this Agreement will terminate and be of no force
or
effect unless extended by agreement among the parties in
writing.
|
| 2. |
All
definitions referred to in this First Amendment have the same meaning
as
in the Principal License and
Sublicense.
|
| 3. |
In
the event of a termination of the Principal License arising on or
after
the Effective Date, other than
a termination that arises as a result of a breach of the Sublicense
by
HPI, UBC grants HPI the exclusive right to retain those rights granted
to
HPI in the Sublicense, which shall remain in effect
on the same terms as the Sublicense, and which rights shall remain
in full
force and effect notwithstanding
the termination of the Principal License, with UBC retaining the
rights
and obligations of the Sublicensor (in lieu of GHTI Canada) under
the
Sublicense.
|
1
| 4. |
GHTI
Canada agrees to provide prompt written notice to HPI if any proceeding
under the Bankruptcy
and Insolvency Act of
Canada, or similar statute of similar purpose, is commenced by
or
against GHTI Canada. No less than ten (10) calendar days prior to
the
effective date of any termination
pursuant to Article 18 of the Principal License, UBC shall provide
written
notice to HPI.
|
| 5. |
UBC
hereby expressly provides its consent to HPI's execution and delivery
of
such Merger Agreement
and the transactions contemplated therein to the extent this shall
constitute an assignment
of the Sublicense and or otherwise require the consent of
UBC.
|
| 6. |
Save
and except as set out herein, all terms and conditions of the Sublicense
are hereby ratified and
confirmed.
|
Signature
Page to Follow.
2
The
parties have executed this Agreement in triplicate originals by their respective
authorized officers on the following day and year.
|
SIGNED
FOR AND ON BEHALF of THE
UNIVERSITY
OF BRITISH COLUMBIA by
its
authorized signatory:
|
|
|
/s/
Xxxxx X. Xxxxx
Authorized
Signatory
|
Xxxxx
X. Xxxxx
Associate
Director
University-Industry
Liaison
|
|
March
7, 2006
Date
|
|
SIGNED
FOR AND ON BEHALF of
GLOBAL HYDROFUEL TECHNOLOGIES INC. by its authorized signatory: |
|
|
/s/
Xxxxx Xxxxxx
Authorized
Signatory
|
|
|
March
7, 2006
Date
|
|
/s/
Xxxxx Xxxxxx
Authorized
Signatory
|
|
|
March
7, 2006
Date
|
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