EXHIBIT 10.01
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment"), is made
and entered into as of the 14th day of December, 2007, by and among DARA
BioSciences, Inc., a Delaware corporation ("DARA"), Point Therapeutics, Inc., a
Delaware corporation ("Point"), and DP Acquisition Corp., a Delaware corporation
and a direct wholly-owned subsidiary of Point ("Merger Sub").
RECITALS:
A. DARA, Point and Merger Sub entered into an Agreement and Plan of
Merger dated as of October 9, 2007 (the "Merger Agreement"); and
B. The parties desire to amend the Merger Agreement to reflect the
modification of certain provisions in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and intending to be legally bound hereby, the parties agree as
follows:
1. Amendments to Merger Agreement. The Merger Agreement is hereby amended
as follows:
a. Section 7.3(c) is amended to read in its entirety as follows:
(c) DARA shall, as promptly as practicable after the
Registration Statement is declared effective under the Securities
Act, duly call, give notice of, convene and hold a meeting of its
stockholders (the "DARA Stockholders Meeting") in accordance with
Delaware Law and its certificate of incorporation and bylaws for the
purpose of obtaining the DARA Stockholder Approval and shall,
through its Board of Directors, recommend to its stockholders, and
use reasonable efforts to solicit from its stockholders proxies in
favor of, the adoption and approval of this Agreement, the Merger
and the other transactions contemplated hereby.
b. Section 8.1(a) is amended to delete the second sentence thereof;
accordingly, Section 8.1(a) shall read in its entirety as follows:
(a) Stockholder Approval. Each of the Point Stockholder
Approval and the DARA Stockholder Approval shall have been obtained.
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2. Ratification. Except as expressly amended by this Amendment, the terms
and conditions of the Merger Agreement are hereby ratified and confirmed to be
in full force and effect, and are hereby incorporated as if fully set forth
herein. In the event of a conflict between the terms of this Amendment and the
Merger Agreement, the terms of this Amendment shall control. All capitalized
terms used and not otherwise defined herein shall have the same meanings as are
ascribed to them in the Merger Agreement.
3. No Novation. The parties agree that the execution of this Amendment, or
any documents as contemplated by this Amendment, or the consummation of any
transaction contemplated by this Amendment, shall constitute an amendment to the
Merger Agreement and shall not be construed as a novation of the Merger
Agreement. The parties hereby acknowledge their intent that this Amendment will
not disturb the existing rights, remedies and obligations created under the
Merger Agreement or any amendments thereto.
4. Binding. This Amendment shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, successors and assigns. No
modification, amendment or waiver of any provision of this Amendment or any
other document executed pursuant to this Amendment shall be effective unless in
writing and signed by all parties.
5. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which,
together, shall constitute one and the same document. It shall not be a
condition to the effectiveness of this Amendment that all parties shall have
signed the same counterpart. This Amendment may be executed and delivered by
facsimile and execution by such means shall be deemed an original.
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The parties hereto have caused this Amendment to be executed and delivered
as of the date first set forth above.
DARA BIOSCIENCES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Chairman and President
POINT THERAPEUTICS, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx.
President
DP ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Secretary
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