AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT
NO. 1 TO AGREEMENT AND PLAN OF MERGER
This
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER is entered into as of June
12,
2006 (this “Amendment”)
among
NOVASTAR RESOURCES LTD., a Nevada corporation (“Novastar”), TP ACQUISITION
CORP., a Delaware corporation and wholly-owned subsidiary of Novastar
(“Acquisition Sub”), and THORIUM POWER, INC., a Delaware corporation (“Thorium
Power”). Capitalized terms used, but not otherwise defined, herein have the
meanings ascribed to such terms in the Agreement (as defined
below).
BACKGROUND
The
Parties entered into an Agreement and Plan of Merger on February 14, 2006 (the
“Agreement”)
relating to the acquisition by Novastar of one hundred percent (100%) of the
outstanding common stock of Thorium Power through a reverse merger of
Acquisition Sub with and into Thorium Power. The Parties now desire to enter
into this Amendment to modify the terms of the Agreement as more specifically
set forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises of the parties hereto, and
of
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendment
to Section 1.2(a).
Section
1.2(a) of the Agreement is deleted in its entirety and in lieu thereof the
following new Section 1.2(a) is inserted:
“(a) Purchase
Price.
(i) At
the
Closing, each issued and outstanding share of Thorium Power’s common stock,
$0.05 par value per share (the “Thorium
Power Common Stock”)
other
than shares of Thorium Power Common Stock held by Novastar shall be converted
into the right to receive 25.454 shares of Novastar’s common stock, $0.001 par
value per share (the “Novastar
Common Stock”).
(ii) At
the
Closing, each Exchangeable Security that has an exercise price of $5.00 or
$1.00
(constituting the only prices at which Exchangeable Securities are exercisable)
shall be converted into the right to receive 22.750 and 11.936 shares of
Novastar Common Stock, respectively.
(iii) All
shares of Thorium Power Common Stock and all Exchangeable Securities will no
longer be outstanding and will automatically be cancelled and retired and shall
cease to exist, and each holder of a certificate representing any such shares
of
Thorium Power Common Stock or certificate or other instrument evidencing any
such Exchangeable Securities that are so exchanged shall cease to have any
rights with respect thereto, except the right to receive the shares of Novastar
Common Stock to be issued in consideration therefor upon the surrender of such
certificate or other instrument in accordance with Section 1.2(c), without
interest.
(iv)
Any
securities convertible into or exercisable for shares of Thorium Power Common
Stock (the “Thorium
Power Convertible Securities”)
immediately prior to the Effective Time (other than the Exchangeable Securities)
will become, at the Effective Time, securities exercisable for such number
of
shares of Novastar Common Stock as the holder of such securities would have
received had such holder converted such securities into Thorium Power Common
Stock immediately prior to the Closing. Appropriate adjustment will be made
to
any exercise or conversion price of such securities.”
2. Amendments
to Section 1.4(d) - Definition of Conversion Ratio.
Section
1.4(d) is deleted and in its place “[intentionally omitted]” is
inserted.
3. Agreement.
In all
other respects, the Agreement shall remain in full force and
effect.
4. Counterparts.
This
Amendment may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
instrument.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of
the
date first above written.
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By:
/s/
Seth
Grae
Name:
Seth Grae
Title:
President and Chief Executive Officer
TP
ACQUISITION CORP.
By:
/s/
Seth
Grae
Name:
Seth Grae
Title:
President and Chief Executive Officer
THORIUM
POWER, INC.
By:
/s/ Seth
Grae
Name:
Seth Grae
Title:
President and Chief Executive
Officer
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