Exhibit 10.1
SECOND AMENDMENT
TO
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
INTRAOP MEDICAL, INC.
AND
INTRAOP MEDICAL CORPORATION
This Amendment (the "Amendment") to the Agreement and Plan of
Reorganization as amended, is made and entered into as of July 30, 2004 by and
among Intraop Medical, Inc., a Delaware corporation ("Target") and Intraop
Medical Corporation, a Nevada corporation ("Acquiror"). Any capitalized terms
not defined herein shall have the same meanings given to them in the Agreement
(as defined below).
RECITALS
Whereas Target and Acquiror have entered into that certain Agreement and
Plan of Reorganization as of February 24, 2004, as amended (the "Agreement")
with respect to a plan of reorganization, as result of which Target will be
merged with and into Acquiror.
Whereas, pursuant to Section 7.1(b) of the Agreement, the Agreement may be
terminated at any time prior to the Effective Time, by written notice by the
terminating party to the other party, by either Acquiror or Target if the Merger
shall not have been consummated by July 31, 2004.
Whereas, it has become apparent to the parties that the merger is unlikely
to be consummated by July 31, 2004.
Whereas, Target and Acquiror desire to amend the Agreement as provided
herein.
Now, therefore, in consideration of the mutual promises, covenants, and
representations contained herein, the parties hereto agree as follows:
AMENDMENT
1) Section 7.1(b) of the Agreement shall be deleted and entirely replaced with
the following:
(b) by either Acquiror or Target if the Merger shall not have been
consummated by September 30, 2004, provided, however, that the right
to terminate this Agreement under this Section 7.1(b) shall not be
available to any party whose failure to fulfill any obligation under
this Agreement has been the cause of or resulted in the failure of the
Merger to occur on or before such date.
2) This Amendment may be executed in counterparts, each of which shall be an
original, but all of which together shall constitute one instrument.
3) Except as otherwise modified hereby, the terms of the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, Target and Acquiror have caused this Amendment to be
executed and delivered by each of them or their respective officers thereunto
duly authorized, all as of the date first written above.
INTRAOP MEDICAL CORPORATION INTRAOP MEDICAL, INC.
(formerly known as DIGITAL XXXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxx X. Goer
Name: Xxxxx Xxxxx Name: Xxxxxx X. Goer
Title: President Title: President
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