AMENDMENT NO. 8
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. 8 to Agreement and Plan of Reorganization
and Merger (the "Amendment") is made as of the 13th day of March , 2003 by and
between U.S. Energy Systems, Inc. ("Parent") and), and US Energy Biogas Corp.
(formerly known as 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 Xx. 0, Xxxxxxxxx
Xx. 0, Xxxxxxxxx Xx. 0, Amendment Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0 and
Amendment No. 7 (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 April 15, 2003 (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 April
15, 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
US ENERGY BIOGAS CORP
By:/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
CONSENTED TO BY:
MAJOR SHAREHOLDER AGENT:
AJG FINANCIAL SERVICES, INC.
By:/s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President and General Manager
