|
Exhibit 10.2
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF
MERGER
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this
“First Amendment”) dated as of August ___, 2007, by and
among INCENTRA SOLUTIONS, INC. , a Nevada corporation
(“Parent”), INCENTRA HELIO ACQUISITION
CORP ., a Delaware corporation and wholly owned subsidiary
of Parent (“Merger Sub”), HELIO SOLUTIONS, INC.
, a California corporation (the “Company”), and
DAVID CONDENSA, as Shareholders’
Representative.
RECITALS
WHEREAS , Parent, Merger Sub, Company and
Shareholders’ Representative are parties to that certain
Agreement and Plan of Merger dated August __, 2007 (the
“Merger Agreement”). Capitalized terms not defined
herein shall have the meaning set forth in the Merger
Agreement.
WHEREAS , the parties desire to amend the Merger Agreement
on the terms and conditions set forth herein.
NOW, THEREFORE , in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto intending to be
legally bound do hereby agree as follows:
1.
Closing . Closing shall occur on August 16, 2007, subject to
the terms and conditions set forth in the Merger Agreement, as
amended by this First Amendment.
2.
Waiver of Covenants and Closing Conditions . Parent and
Merger Sub acknowledge and accept that as of Closing,
notwithstanding the certificates of the President and Treasurer of
the Company to be delivered at Closing, the Company will not have
obtained consents from third parties required under the terms of
agreements entered into between the Company and such third parties,
including without limitation in relation to the Company’s
lease for its San Jose office space and with respect to an SBA loan
(the “SBA Loan”) used to acquire property owned by 3000
Lakeside LLC, a California limited liability company owned by
certain of the Shareholders, under which SBA Loan the Company is an
obligor (collectively, the “Third Party Consents”).
Parent and Merger Sub hereby waive, as of the date hereof and as of
Closing, the conditions and covenants set forth in the Merger
Agreement to the extent such c
|
