EXHIBIT 10.9


    Exhibit
      10.9

    
 

    FIFTH
      AMENDMENT TO AGREEMENT 

     

    AND
      PLAN OF MERGER

     

    


     

    BY
      AND AMONG

     

    EQUITEX,
      INC.,

     

    EI
      ACQUISITION CORP.,

     

    AND

     

    HYDROGEN
      POWER, INC.

     

    


     

    


     

    March
      10, 2006

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    FIFTH
      AMENDMENT TO AGREEMENT AND PLAN OF MERGER

     

    This
      Fifth Amendment to Agreement and Plan of Merger (this
      “Agreement”)
      is
      entered into as of March 10, 2006, by and among Hydrogen Power, Inc., a Delaware
      corporation (the “Company”),
      Equitex, Inc., a Delaware corporation (“Equitex”),
      and
      EI Acquisition Corp., a Delaware corporation that is wholly owned by Equitex
      (the “Merger
      Sub”).

     

    INTRODUCTION

     

    A. The
      Company, Equitex and Merger Sub have entered into that certain Agreement and
      Plan of Merger and Reorganization dated September 13, 2005, as amended in that
      certain First Amendment to Agreement and Plan of Merger and Reorganization
      dated
      October 31, 2005, that certain Second Amendment to Agreement and Plan of Merger
      and Reorganization dated November 11, 2005, that certain Third Amendment to
      Agreement and Plan of Merger and Reorganization dated December 15, 2005 and
      that
      certain Fourth Amendment to Agreement and Plan of Merger and Reorganization
      dated January 30, 2006 (as amended, the “Merger Agreement”) whereby the Company
      and Merger Sub will merge with the surviving corporation being a subsidiary
      of
      Equitex (the “Merger”).

     

    B. The
      Company, Equitex and Merger Sub have agreed to enter into this Agreement in
      order to amend the Merger Agreement by entering into this Agreement in order
      to
      (i) extend the termination date of the Merger Agreement to March 17, 2006,
      and
      (ii) set forth further additional agreements of the parties regarding the
      completion of the Merger. 

     

    C. The
      parties to this Agreement intend to adopt the Merger Agreement, as amended
      by
      this Agreement, as a plan of reorganization within the meaning of
      Section 368(a) of the Internal Revenue Code of 1986, as amended (the
“Code”),
      and
      the regulations promulgated thereunder, and intend that the Merger and the
      transactions contemplated by this Agreement be undertaken pursuant to that
      plan.
      Accordingly, the parties to the Merger Agreement, as amended by this Agreement,
      confirm their intention that the Merger qualify as a “reorganization,” within
      the meaning of Code Section 368(a) and a “foreign merger” within the
      meaning of Section 87(8.1) of the Income Tax Act (Canada), and that, with
      respect to the Merger, Equitex, Merger Sub and the Company will each be a “party
      to a reorganization,” within the meaning of Code
      Section 368(b).

     

    AGREEMENT

     

    Now,
      Therefore,
      in
      consideration of the foregoing premises, and the representations, warranties
      and
      covenants contained herein, the parties hereto agree as follows:

     

     

    Article
      1

    Amendment
      to Termination Date

     

    1.1  Amendment
      to Termination Date. In order to reflect a change in the termination date of
      the Merger Agreement, Section 7.1(e) of the Merger Agreement is hereby deleted
      in its entirety and replaced with the following:

     

    “(e) by
      either
      the Company or Equitex if the Effective Date is not on or before March 17,
      2006,
      or such later date as the Company and Equitex may mutually agree (unless the
      failure to consummate the Merger by such date shall be due to the action or
      failure to act of the party seeking to terminate this Agreement in breach of
      such party’s obligations under this Agreement).”

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


     

     

    Article
      2

    Closing
      Advance

     

    2.1  Closing
      Advance. In order to give effect to the agreement of the parties that
      Equitex will advance to EI Acquisition the principal amount of $5,000,000 as
      a
      condition of closing of the Merger, Section 6.3(g) is hereby added to the Merger
      Agreement:

     

    “(g) Equitex
      will have advanced to EI Acquisition the principal amount of $5,000,000 (the
      “Closing Advance”) as an equity contribution and shall provide the Company
      evidence of such Closing Advance, in a manner reasonably acceptable to the
      Company, and such wire transfer may be completed concurrently with Closing.
      Notwithstanding the foregoing, Equitex may, at its sole option, provide such
      Closing Advance from other sources, including without limitation, pursuant
      to a
      loan from FastFunds Financial Corporation (“FastFunds”). Equitex acknowledges
      and agrees that the Closing Advance will not be in any way secured by the
      Security Agreement. The Company acknowledges and agrees that the completion
      of
      the Closing Advance will constitute satisfaction of Equitex’s obligation to
      advance $5,000,000 toward the exploitation and commercialization of the Company
      Intellectual Property within 45 days of the Closing, as contemplated by Section
      5.12 of this Agreement. Notwithstanding the above, in order to facilitate a
      loan
      by FastFunds to Equitex and the grant of security by Equitex to FastFunds in
      order to enable Equitex to complete the Closing Advance, the parties agree
      that
      the Closing will be completed as follows:

     

    (i) documents
      required to effect the Closing pursuant to this Agreement will be delivered
      by
      each party in escrow to Maslon Edelman Borman & Brand, LLP (“Maslon”), as
      attorneys for Equitex, to be held in trust pending Closing;

     

    (ii) Equitex
      will deliver or will cause FastFunds to deliver the Closing Advance in escrow
      to
      Mason to be held in trust pending Closing;

     

    (iii) Maslon
      will be entitled to file the Certificate of Merger with the Delaware Secretary
      of State upon: (A) delivery of the Closing Advance to Maslon in escrow, and
      (B)
      delivery by Equitex and FastFunds of an irrevocable direction to release the
      Closing Advance to the Company, as the surviving corporation, upon confirmation
      of filing of the Certificate of Merger with the Delaware Secretary of
      State;

     

    (iv)
       upon
      receipt of confirmation of filing of the Certificate of Merger with the Delaware
      Secretary of State, Maslon will deliver the Closing Advance to the Company,
      as
      the surviving corporation, by wire transfer to a bank account designated by
      the
      Company and will release the documents required to effect Closing to the
      respective parties to whom the documents are to be delivered upon
      Closing.

     

     

    Article
      3

    Loan
      Amount

     

    3.1  Loan
      Amount. In order to give effect to the agreement of the parties that Equitex
      and EI Acquisition will either (i) convert the principal of the Loan Amount
      and
      all accrued interest into shares of

     


    
      
        
        

      

      
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    common
      stock of the Company, or (ii) forgive repayment of the Loan Amount and all
      accrued interest, Section 6.3(h) is hereby added to the Merger
      Agreement:

     

    “(h) Concurrent
      with and as a condition to Closing, Equitex will, at the Company’s direction,
      either (i) convert the principal of the Loan Amount plus accrued interest into
      shares of common stock of HPI, or (ii) forgive the indebtedness, liabilities
      and
      obligations of the Company to Equitex for repayment of the Loan Amount, plus
      accrued interest. In each case, the Company will be released of its
      indebtedness, liability and obligations under the Promissory Note and the
      Security Agreement and each of the Promissory Note and the Security Agreement
      will be cancelled and will be of no further force or effect.” 

     

     

    Article
      4

    Nasdaq

     

    4.1  Nasdaq.
      In order address the requirement of Nasdaq that Equitex submit a new listing
      application in order to maintain the continued listing of Equitex common stock
      following completion of the Merger, Section 6.3(i) is hereby added to the Merger
      Agreement:

     

    “(i) Equitex
      will have submitted to Nasdaq a listing application, as required by Nasdaq
      in
      its letter dated February 28, 2006, and Equitex will not have been notified
      by
      Nasdaq of any refusal (a) to list Equitex common stock pursuant to such new
      listing application and (b) to maintain the continued listing of Equitex common
      stock pursuant to Equitex’s current listing application following the completion
      of the Merger.”

     

     

    Article
      5

    UBC
      Amended Sublicense Agreement

     

    5.1  UBC
      Amended Sublicense Agreement. In order to give effect to the agreement of
      the parties as to the final form of the First Amendment to the Sublicense
      Agreement and Consent to be entered into between the Company, the Amended
      Sublicense Agreement attached as Exhibit E to the Merger Agreement is hereby
      replaced with the Amended Sublicense Agreement attached hereto as Exhibit
      A.

     

     

    Article
      6

    Consent
      of Company to Equitex Actions

     

    6.1 Company
      Consents to Equitex Conduct of Business. Pursuant to the terms of Section
      4.1 of the Merger Agreement, the Company hereby acknowledges and consents to
      the
      actions of Equitex set forth on Exhibit B hereto. The Company further
      acknowledges that such actions do not constitute breach of any covenant,
      representation or warranty of Equitex or Merger Sub under the Merger
      Agreement.

     

     

    Article
      7

    General
      Provisions

     

    7.1 Merger
      Agreement in Full Force and Effect.
      The Merger Agreement shall continue in full force and effect without amendment
      except as expressly provided for in this Agreement.

     


    
      
        
        

      

      
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    7.2 Interpretation.
      The headings contained in this Agreement are for reference purposes only and
      shall not affect in any way the meaning or interpretation of this Agreement.
      References to Sections and Articles refer to Sections and Articles of this
      Agreement unless otherwise stated.

     

    7.3 Severability.
      If any
      term, provision, covenant or restriction of this Agreement is held by a court
      of
      competent jurisdiction to be invalid, void or unenforceable, the remainder
      of
      the terms, provisions, covenants and restrictions of this Agreement shall remain
      in full force and effect and shall in no way be affected, impaired or
      invalidated, and the parties shall negotiate in good faith to modify this
      Agreement and to preserve each party’s anticipated benefits under this
      Agreement.

     

    7.4 Amendment.
      This
      Agreement may not be amended or modified except by an instrument in writing
      approved by the parties to this Agreement and signed on behalf of each of the
      parties hereto.

     

    7.5 Miscellaneous.
      This
      Agreement (together with all other documents and instruments referred to
      herein): (a) constitutes the entire agreement, and supersedes all other prior
      agreements and undertakings, both written and oral, among the parties, with
      respect to the subject matter hereof; and (b) shall be binding upon and
      inure to the benefit of the parties hereto and their respective successors
      and
      assigns, but shall not be assignable by either party hereto without the prior
      written consent of the other party hereto.

     

    7.6 Counterparts;
      Delivery.
      This Agreement may be executed in any number of counterparts, and each such
      counterpart shall be deemed to be an original instrument, but all such
      counterparts together shall constitute but one agreement. In addition, executed
      counterparts may be delivered by means of facsimile or other electronic
      transmission; and signatures so delivered shall be fully and validly binding
      to
      the same extent as the delivery of original signatures.

     

    7.7 Governing
      Law.
      This
      Agreement is governed by the internal laws of the State of Delaware without
      regard to its conflicts-of-law principles.

     

    


     

    [SIGNATURE
      PAGE TO FOLLOW.]

     


    
      
        
        

      

      
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    In
      Witness Whereof,
      the
      parties hereto have caused this Agreement to be executed effective as of the
      date first written above.

     

    

      
        	
                HYDROGEN
                  POWER, INC.:

                 

                 

                By: 
                  /s/ James Matkin

                Name: James
                  Matkin

                Title: Chairman

              	
                EQUITEX,
                  INC.:

                 

                 

                By:  /s/
                  Henry Fong

                Name: Henry
                  Fong

                Title: President

              
	 	
                 

                 

                EI
                  ACQUISITION CORP.:

                 

                 

                By:  /s/
                  Henry Fong

                Name: Henry
                  Fong

                Title: President