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Exhibit 10.4
SECOND AMENDMENT
TO
AGREEMENT AND PLAN OF
MERGER
SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this
“Second 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”), as amended by
that certain First Amendment to Agreement and Plan of Merger dated
as of August __, 2007 ( as amended by the First Amendment, the
Merger Agreement). Capitalized terms not defined herein shall have
the meaning set forth in the Merger Agreement and the First
Amendment.
WHEREAS
, the parties desire to further 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, and any provisions of the Merger Agreement
to the contrary notwithstanding, the parties hereto intending to be
legally bound do hereby agree as follows:
1.
Net Working Capital Measurement at Closing . The Net Working
Capital measurement date shall be changed from the Closing Date to
August 31, 2007 and the term “Closing Net Working
Capital” as used in the Merger Agreement, as amended hereby,
shall mean Net Working Capital of the Company as of August 31,
2007. In the event that as of August 31, 2007, Net Working Capital
is less than $1,800,000, excluding any current assets arising from
or related to the executive life insurance policies, the amount by
which Net Working Capital is less than $1,800,000 will
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