Exhibit 10.2.2
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Amendment Agreement ("Amendment"), is made and entered into this
12th day of April 2006 by and among NEAH POWER SYSTEMS, INC. (FORMERLY, GROWTH
MERGERS, INC.), a Nevada corporation ("NEAH-NEVADA"), having its principal
offices at 00000 00xx Xxxxxx X.X., Xxxxxxx, Xxxxxxxxxx 00000; NEAH POWER
SYSTEMS, INC., a Washington corporation ("NEAH"); SUMMIT TRADING LIMITED, a BVI
corporation; and SPECIAL INVESTMENTS ACQUISITIONS ASSOCIATES LLC, a Nevada
limited liability company (collectively, the "NEAH-NEVADA PRINCIPAL
STOCKHOLDERS"). NEAH-NEVADA, NEAH and the NEAH-NEVADA PRINCIPAL STOCKHOLDERS are
hereinafter sometimes collectively referred to as the "PARTIES."
WHEREAS, on March 9, 2006, the Parties consummated the transactions contemplated
by an Agreement and Plan of Merger, dated March 9, 2006 (the "MERGER AGREEMENT")
among the Parties and Growth Acquisition Corp. ("MERGERCO"), pursuant to which
Mergerco was merged with and into Neah (the "MERGER"), with Neah as the
surviving corporation of such Merger;
WHEREAS, it was the intention of the Parties and provided in the Merger
Agreement that, upon consummation of the Merger (a) the "NEAH SECURITY HOLDERS"
(as defined in the Merger Agreement) would own 25% of the "GROWTH FULLY-DILUTED
COMMON STOCK" (as defined n the Merger Agreement; (b) all holders of Growth
Common Stock and other securities of Growth immediately prior to the Merger
(other than the "GROWTH PRINCIPAL STOCKHOLDERS" (as defined n the Merger
Agreement)) would own 10% of the Growth Fully-Diluted Common Stock; and (c) the
"SERIES A PREFERRED CONVERSION SHARES" (as defined in the Merger Agreement)
issuable to the Growth Principal Stockholders upon conversion of the "SERIES A
PREFERRED STOCK" (as defined in the Merger Agreement) would represent a maximum
of 65% of the Growth Fully-Diluted Common Stock, less the sum of (i) the
Novellus Shares (if any), (ii) the Stockholder Loan Shares, and (iii) any shares
of Growth Common Stock that are issued or issuable in connection with one or
more "GROWTH ADDITIONAL FINANCINGS" (as defined in the Merger Agreement);
WHEREAS, immediately after to the Effective Time of the Merger, excluding the
Series A Conversion Shares, and subsequent to a two-for-one forward stock split,
there were an aggregate of 10,481,543 shares of Growth Fully-Diluted Common
Stock issued and outstanding;
WHEREAS, the parties hereto desire to amend the Merger Agreement, as hereinafter
provided, to make the relative percentage ownership by the Neah Security
Holders, the Growth Principal Stockholders and the other holders of Growth
Common Stock of the Growth Fully-Diluted Common Stock consistent with the intent
of the Parties and the stated provisions of the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Parties hereto intending to be bound hereby, it is
agreed as follows:
1. DEFINITIONS. Unless otherwise separately defined in this Amendment, all
capitalized terms, when used herein shall have the same meaning as is set forth
in the Merger Agreement.
2. AMENDMENT TO DEFINITIONS.
(a) The definition of "SERIES A PREFERRED CONVERSION SHARES" as
set forth in the Merger Agreement, be and the same hereby is deleted in its
entirety and is replaced by the following defined term.
"SERIES A PREFERRED CONVERSION SHARES shall mean the maximum number of
shares of GROWTH Common Stock into which the Series A Preferred Stock shall be
converted, being a maximum of (a) sixty-five (65%) of the GROWTH Fully-Diluted
Common Stock (anticipated to be 68,130,030 shares of GROWTH Common Stock), LESS
(b) the sum of (i) the Stockholder Loan Shares, and (ii) any shares of GROWTH
Common Stock that are issued or issuable in connection with any one or more of
the GROWTH Financings aggregating maximum gross proceeds (inclusive of gross
proceeds from conversion of any Stockholder Debt into Stockholder Loan Shares)
not to exceed $2,000,000 in the aggregate."
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(b) the definition of "Novellus Shares" as set forth in the Merger
Agreement, be and the same hereby is, deleted in its entirety.
3. AMENDMENT TO SECTION 1.2(a)(i) OF THE MERGER AGREEMENT. Section
1.2(a)(i) of the Merger Agreement setting forth the "Conversion Rate" applicable
to the 7,990,457 shares of NEAH Common Stock issued and outstanding immediately
prior to the Effective Time of the Merger, be and the same is hereby, deleted in
its entirety, and is replaced by the following Section 1.2(a)(i):
"1.2 CONVERSION OF SECURITIES.
(a) CONVERSION OF NEAH SECURITIES. At the Effective Time, by
virtue of the Merger and without any action on the part of GROWTH, MERGERCO,
NEAH or the holders of any of their respective securities:
(i) Each of the 7,990,457 shares of NEAH Common Stock
issued and outstanding immediately prior to the Effective Time, shall be
converted into and represent the right to receive, 3.2793941 Merger Shares (the
"CONVERSION RATE"), or an aggregate of 26,203,858 Merger Shares. All fractional
shares obtained by applying such conversion shall be rounded up to the nearest
whole share."
4. AMENDMENT TO SECTION 3.3(d) OF THE MERGER AGREEMENT. Section 3.3(d) of
the Merger Agreement, be and the same hereby is, deleted in its entirety and is
replaced by the Following Section 3.3(d):
"(d) Prior to the Effective Time of the Merger, GROWTH and the
GROWTH Principal Stockholders have entered into the Stock Purchase Agreement,
pursuant to which such GROWTH Principal Stockholders shall purchase 6,500,000
shares of the Series A Preferred Stock from GROWTH. On the Effective Time of the
Merger (i) the GROWTH Principal Stockholders shall be the record and beneficial
owner of 6,500,000 shares GROWTH Series A Preferred Stock, convertible into the
Series A Preferred Conversion Shares pursuant to the Series A Preferred
Certificate of Designation, and (ii) the remaining GROWTH stockholders
(including the holders of publicly traded shares) shall own an aggregate of
10,481,543 shares of Fully-Diluted GROWTH Common Stock, or such other number of
shares as shall represent in the aggregate, 10.0% of the 104,815,431 shares
GROWTH Fully-Diluted Common Stock to be issued and issuable immediately
following the Effective Time of the Merger."
5. MISCELLANEOUS.
Except as specifically amended pursuant to this Amendment, all
of the terms and conditions of the Merger Agreement shall remain in full force
and effect and are incorporated herein by this reference as though more fully
set forth herein at length.
IN WITNESS WHEREOF, the Parties have executed this Amendment, the day and year
first above written.
ATTEST: NEAH POWER SYSTEMS, INC.
(FORMERLY, GROWTH MERGERS, INC.)
a Nevada corporation
______________________ By: /s/ Dr. Xxxxxx Xxxxx
--------------------
___________, Secretary Dr. Xxxxxx Xxxxx, Chairman
ATTEST: NEAH POWER SYSTEMS, INC.
a Washington corporation
______________________ By: /s/ Xxxx Xxxxxxxxxx
Secretary -------------------
Xxxx Xxxxxxxxxx,
President and CEO
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SUMMIT TRADING LIMITED
By: /s/ Xxxxxxx Xxxxxxx
-------------------
Xxxxxxx Xxxxxxx,
Authorized Signatory
SPECIAL INVESTMENTS ACQUISITIONS
ASSOCIATES LLC
By: /s/ Xxxx Xxxxxxxxxx
-------------------
Xxxx Xxxxxxxxxx, Manager
The undersigned, as the former President of Growth Merger, Inc., and as counsel
to the former holders of Common Stock of Growth Mergers, Inc. prior to the
Effective Time of the Merger, does hereby consent to the foregoing Amendment to
the Merger Agreement.
GROWTH MERGERS, INC.
BY: /s/ Xxxxx Xxxx
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Xxxxx Xxxx, President
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