AMENDMENT TO AGREEMENT AND PLAN OF MERGER
EXHIBIT
2.1
AMENDMENT
TO AGREEMENT AND PLAN OF MERGER
This
Amendment, dated as of September 11, 2007 and effective August 31,
2007 (this
“Amendment”), amends the Agreement and Plan of Merger, dated
as
of May 25, 2007 (the “Merger Agreement”), by and among Virium
Pharmaceuticals Inc., a New York corporation (the “Company”),
REIT Americas, Inc., a Maryland corporation (“RAI”), Virium
Pharmaceuticals, Inc., a Delaware corporation and direct, wholly-owned
subsidiary of RAI (“Pharmaceuticals”) and Virium Merger Sub,
Inc., a Delaware corporation and direct, wholly-owned subsidiary
of
Pharmaceuticals (“Merger Sub”). Terms not otherwise
defined herein which are defined in the Merger Agreement shall have
the same
respective meanings herein as therein.
WHEREAS,
the parties have agreed to
modify certain terms and conditions of the Merger Agreement as specifically
set
forth in this Amendment.
NOW,
THEREFORE, in consideration of the
mutual agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
1. Amendment
to the Merger Agreement. Section 7.1(b) of the Merger Agreement is hereby
deleted in its entirety and replaced with the following:
“(b) by
either the Company
or Parent, by written notice to the other if, for any reason, the
Closing has
not occurred prior to the close of business on or before November
2, 2007;
provided, however, that (i) the right to terminate this Agreement
pursuant to
this Section 7.1(b) shall not be available to the Company or Parent,
as
applicable, if the party seeking to terminate the Agreement is responsible
for
the delay;”
2. Ratification,
Etc. Except as expressly amended hereby, all terms and conditions
of the Merger Agreement, as amended, are hereby ratified and confirmed
in all
respects and shall continue in full force and effect. All references
to the Merger Agreement shall hereafter refer to the Merger Agreement,
as
amended hereby.
3. Counterparts. This
Amendment may be executed in two or more counterparts, each of which
shall be
deemed an original but which together shall constitute one and the
same
instrument. The executed signature pages hereto may be delivered by
facsimile or other means of electronic image transmission, such a
copy of any
signature page hereto shall have the same force an effect as an original
thereof.
4. GoverningLaw. This
Amendment shall be governed by, and construed in accordance with,
the laws of
the State of New York (without reference to principles of conflict
of
laws).
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto
have executed this Amendment as a document under seal as of the
date first above
written.
| Virium Pharmaceuticals Inc. | ||
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| By: |
/s/
Xxxxx Xxxxxxxx
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Name:
Xxxxx Xxxxxxxx
Title:
President and CEO
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| REIT Americas, Inc. | ||
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| By: |
/s/
F. Xxxx Xxxxxxx
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Name:
F. Xxxx Xxxxxxx
Title:
President
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Virium
Pharmaceuticals, Inc.
(Delaware)
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| By: |
/s/
F. Xxxx Xxxxxxx
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Name:
F. Xxxx Xxxxxxx
Title:
President
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| Virium Merger Sub, Inc. | ||
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| By: |
/s/
F. Xxxx Xxxxxxx
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Name:
F. Xxxx Xxxxxxx
Title:
President
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